HKSAR v. MINHAJAUL

CACC 139/2017

[2021] HKCA 2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 139 OF 2017

(ON APPEAL FROM HCCC NO 57 OF 2016)

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J U D G M E N T

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Hon Macrae VP:

(A)    Background of the case

1.  The appellant originally faced an indictment containing two counts of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Both offences took place on 26 August 2015. 

2.  The first count concerned a seizure of 3 grammes of herbal cannabis, wrapped in tissue paper, which the appellant was holding when he was intercepted by officers of the Customs & Excise Department on the staircase leading to the ground floor of a building in Tsim Sha Tsui, Kowloon.

3.  The second count concerned a variety of different dangerous drugs found on the upper bunk bed inside a subdivided room located within the same building, to which the appellant had access with a bunch of keys retrieved from his trouser pocket.  The subject matter of this particular count involved 2,327.88 grammes of cannabis in herbal form, 1.16 kilogrammes of cannabis resin, 35.30 grammes of powder containing 0.24 grammes of methylenedioxymethamphetamine and traces of trifluoro‑methylphenylpiperazine, 0.95 gramme of a powder containing 0.30 gramme of cocaine, 39.30 grammes of a solid containing 15.57 grammes of cocaine, and 60.1 grammes of a crystalline solid containing 39.8 grammes of methamphetamine hydrochloride (commonly known as “ice”) and 12 grammes of ketamine.

4.  On 18 April 2017, the appellant pleaded guilty to the first count, but not guilty to the second count.  He was thereafter tried on an amended indictment containing only the second count in respect of the seizure from the subdivided room before D’Almada Remedios J (“the judge”), and a jury.  On 26 April 2017, he was unanimously convicted of the second count.  He was duly sentenced to 6 weeks’ imprisonment on the first count, and 10½ years’ imprisonment on the second count, both of which sentences were ordered to run concurrently with each other.

5.  At a leave hearing before a Single Judge on 9 January 2020, leave to appeal was granted to the appellant on what are now Grounds 1, 2 and 3[1]. Subsequently, the appellant also applied for bail pending appeal, which was refused by the same judge on 23 September 2020[2].

(B)    The trial

(i)   The prosecution case

6.  The prosecution presented its case as a simple stop-and-search operation by two Customs officers on routine patrol.  In the evening of 26 August 2015, Customs Officer 0593 (“PW1”) and Customs Officer 0578 (“PW2”) were patrolling in plain clothes in Tsim Sha Tsui, Kowloon.  When they were outside Fook Kiu Mansion, at No 34 Cameron Road, they noticed the appellant walking down the staircase to the ground floor of the building in what they considered a suspicious manner.

7.  The officers intercepted the appellant and revealed their identities.  Upon search, the officers found in the appellant’s left hand some herbal cannabis (the subject-matter of the first count), wrapped in white tissue paper.  The appellant was immediately arrested and cautioned for possession of dangerous drugs.  In response to the officers’ inquiries under caution, the appellant said, in English, that the thing in his hand had come from a room upstairs and that the keys to that room were in his left rear trouser pocket.  Upon further search, a bunch of seven keys, two mobile telephones and HK$1,564 in cash were also found on the person of the appellant.

8.  The appellant subsequently led the Customs officers to Flat 2D on the first floor of the building.  The officers used the keys found on the appellant to gain access to Flat 2D and then to Room 3, which was one of the subdivided rooms within the unit. 

9.  Inside Room 3 was a two-tiered bed, on the upper bunk of which the officers found hundreds of packets of dangerous drugs, which formed the subject-matter of the second count; and which had been placed together with four sets of electronic scales and 226 unused zip-lock bags[3]. The total street value of the drugs found on the upper bunk of the bed, as at the date of seizure, was HK$394,247.25[4].

10.  Under caution, the appellant admitted that the “stuff” on the upper bunk of the bed belonged to him, and that he had purchased it for HK$50,000 from a Pakistani friend in order to sell it on to other people.  However, he denied knowing what the “stuff” actually was[5].

11.  It was an admitted fact that none of the appellant’s fingerprints were found inside Room 3.  However, marks from the right thumb, the left forefinger and the left middle finger of a person called Muzammel Hoque (“Hoque”) were found on an insecticide bottle placed on a table inside Room 3[6]. The jury were also informed, by way of an admitted fact, that the appellant was a man of clear record in Hong Kong prior to his guilty plea to the first count[7].

12.  The prosecution case put to the appellant was that he had access to the drugs in Room 3, of which he was a “storekeeper, caretaker or indeed a seller of drugs”[8]; and that his possession of the keys to Room 3 meant that he was knowingly in possession of the drugs inside[9]. In his closing address to the jury, prosecuting counsel reminded the jury that, on his own evidence[10], the appellant was actually in the process of delivering the drugs he was carrying from Room 3 to another when he was intercepted and arrested[11].  It was not the prosecution case nor was it ever suggested to the appellant in cross-examination, or to the jury in submission, that he was the tenant of, or that he lived in, Room 3.  Nor was the appellant’s evidence that he had never rented or lived in Room 3[12] challenged by prosecuting counsel.  At no stage did the judge in her summing-up suggest that it was the prosecution’s case that the appellant lived in or tenanted Room 3.

(ii)   The introduction of Hoque’s witness statement into the evidence under section 65B of the Criminal Procedure Ordinance, Cap 221

13.  During cross-examination of PW1, Mr McGuinniety, defence counsel at trial, apart from challenging the witness as to how the arrest of the appellant had actually taken place, also tackled him as to why the appellant should have been intercepted in the first place.  It was suggested that this was no routine stop-and-search operation, but was the direct result of a tip-off to Customs officers by Hoque[13], who was the real tenant of Room 3 at the material time[14].  The matter of Hoque’s suggested tenancy of the premises in question prompted Mr Cahill, counsel prosecuting on fiat, to request that the jury be excused while he raised a matter in their absence[15].

14.  The jury having left court, Mr Cahill told the judge that Hoque had given a witness statement to Customs officers[16], in which he had stated that, although he had originally been the tenant of the premises, he had moved out of Room 3 after 1½ months and allowed a named friend to assume the tenancy instead several months before the appellant’s arrest.  Mr Cahill was concerned that Mr McGuinniety’s cross-examination might give the misleading impression that Hoque was still living in Room 3 at the time of the appellant’s arrest[17].

15.  Mr McGuinniety, having confirmed that he had received Hoque’s statement as unused material[18], then explained his reasons for pursuing this particular line of cross-examination[19]:

“MR McGUINNIETY:	My Lady, I understand what my friend is trying to suggest or trying to say or not even trying to but saying, but I would like to say this in response.
	First of all, my right to cross-examine is not limited to what this statement says, coupled with which I have instructions specifically that Muzammel was --- Mr Hoque, the person in question - was living at that address, that that was his address, that that’s who gave him the keys to that flat and that his girlfriend lived at that flat and that he lived at that flat in that room, and that if you look at photograph number 8, his jacket is in there and his girlfriend’s dress is in there.
COURT:	Sorry, hold on, please. Mr Muzammel was the person living there, you say.
MR McGUINNIETY:	Yes. That he was the tenant there, that he was the person that gave the defendant the keys, that he was the person who asked the defendant to go to that flat, that it was to him he was returning the keys, that the person in question has left his clothes there, that the person in question has left his girlfriend’s clothes there, and, not only that, but a fingerprint was found on a bottle inside that room which belonged to him.
	So I think I’m entitled on that basis and on those instructions to put what I’ve been putting and, to be honest, I didn’t realise I’d actually quite got to the point where I was suggesting that he was living there, but I had suggested that there was a connection to that room and that this was a person that he would have known, being an investigating officer, and you will recall that my first question was: do you know the name “Muzammel Hoque”? He thought about it, he thought about it, and he said, “No, never heard of it.”
	And then I went on to say, “Well, he -- funnily enough, he lived there, that he was a tenant there. I’m going to go on to say that his jacket there, his girlfriend’s dress was there, a fingerprint was found on the bottle there, the defendant had told the police that was why he went there, that he’d given the keys to him and that the defendant was returning the keys. And it’s pivotal in my case that this man, this person, is mentioned in order to effectively build up a defence that he had no knowledge, he didn’t have possession, he’d gone there, he had been in that room, he didn’t know about the drugs, and etc.
	And the statement just --- it kind of helps but doesn’t go quite far enough, I accept that, but, of course, this defendant was never go --- perhaps in the circumstances it was unlikely that the defendant was going to own up to living there, but, be that as it may, it clearly states the man’s name and where he lived and identifies that room.
	And I’m going on one step further, based on my instructions, so I’m marrying what I have from the unused material with what I’ve been given by my client in terms of my instructions, and if you wish me not to ask questions, of course, I won’t, but I would respectfully ask the court to be allowed to continue the line of cross-examination which I was taking, which, in my respectful submission, doesn’t go beyond the bounds of reasonable cross-examination.
	It’s not fishing or anything like that.  It’s very firm questions based on instructions I have and evidence before me, including an unused material statement, a photograph and fingerprint evidence.”

16.  The judge seemed to accept Mr McGuinniety’s submission that this was a valid line of cross-examination[20]:

COURT:	So, Mr Cahill, if I see no objection to Mr McGuinniety asking these questions of this officer in the manner that he has, in that these are what the investigations results were and you will also be able to therefore, whatever...
MR CAHILL:	Do that, and I might take one step further.  In fact, I will take one step further and indicate to the court, based on what I’ve been told now, that this Mr Hoque to be called by the prosecution as a witness, well, to clarify the matters, so...
COURT:	Very well.
MR CAHILL:	...I might forewarn my friend that that’s a course that I’m contemplating and -- at the moment.
COURT:	Very well.  So you...
MR McGUINNIETY:	May I have liberty to proceed?
COURT:	Certainly.
MR McGUINNIETY:	I’m quite aware of my friend’s warning and I’m happy to hear it and look forward to cross-examining him in due course.”

Mr McGuinniety then resumed his cross-examination of PW1.  

17.  At the commencement of proceedings on the following day, Mr Cahill informed the judge that an agreement had been reached between the parties that Hoque’s statement would be introduced into evidence under section 65B of the Criminal Procedure Ordinance, Cap 221[21]:

“MR CAHILL: May I just say one thing, my Lady? You asked indication from me about Mr Hoque. I do not propose to call Mr Hoque but I’ve spoken to my learned friend and it was agreed that it could be put forward as under section 65B of the Criminal Procedure Ordinance.

COURT: His statement, yes.

MR CAHILL: His statement, yes.

COURT: You confirm that, Mr McGuinniety?

MR McGUINNIETY:     My Lady, yes.”

18.  When the evidence of the next witness, PW2, had been concluded in the afternoon of the same day, Mr Cahill indicated, in the presence of the jury, “that there’s agreement between defence and the prosecution to tender a statement of Mr Hoque under section 65B of the Ordinance, Cap 221.  We have prepared 14 copies of that”[22]. The statement was then read out by Mr Cahill to the jury[23]. 

19.  Hoque’s statement, which was written in English and dated 10 April 2017, was in the following terms[24]:

“I Muzammel Hoque make statement to the Customs and Excise Department of my own free will and it is recorded in writing by Customs Officer Ting Yui Ming. The statement I’m about to make is all true to the best of my knowledge and belief. I understand that if I wilfully state anything which I know to be false or believe to be false I may be liable to prosecution for a criminal offence. (Signed and dated)

I, Muzammel Hoque, am single and have resided in Flat J, 5/F, Star Mansion, Tsim Sha Tsui, Kowloon for about 10 years. I work as a chef in Wan Chai now.

I knew one person who called Minhajaul, I think he should be the person that arrested by the Customs officers who called Abedin Minhajaul.

On 26.1.2015, I went to the shop ‘Raja Fashions’ in Cameron Road, Tsim Sha Tsui. I contacted with a staff of the shop who called Mohammed Afzal, I signed the tenancy agreement and gave him $8000 as deposit and $4000 as the first month rent, for renting the apartment in Flat C, 1/F, Fook Kui Mansion, 34-36 Cameron Road, Tsim Sha Tsui, Kowloon. After that he gave me the key of the apartment. Then I started to live in the apartment.

After one and a half month I started to live in the apartment, I feel unhealthy when I stay in there. So I let my Pakistan friend replace me to rent the apartment, he called Afzal. I want to mention that he was not the staff of ‘Raja Fashions’ who called Mohammed Afzal, they were two different people. Then my Pakistan friend Afzal gave $8000 deposit money to me, and I gave him the key of the above apartment. I didn’t keep any key of the above apartment. After that day, I never go to the above apartment. Afzal said that he decided to live in the above apartment with Minhajaul. I have no any contact number of Afzal and Minhajaul, also I never see them again.

I Muzammel Hoque have read the above statement consisting of two pages. Each page has been signed by me. I understand that I can alter correct anything I wish. The content of this statement is all true and I have made it of my own free will. (Signed and dated).” (Emphasis supplied)

I have italicised the sentence in the penultimate paragraph of the above statement (“the impugned sentence”), because it has given rise to a discrete ground of appeal as to its admissibility (Ground 3).

(iii)   The defence case

20.  The appellant elected to give evidence and called one witness, Mr Amar Dutta (DW2), whom Mr McGuinniety was subsequently to describe in his own speech to the jury as “not the greatest of witnesses, frankly”[25]. The appellant’s case was that he simply had no knowledge that dangerous drugs were kept in Room 3: he was the victim of a ‘set up’ by Hoque.  He suggested that it was no coincidence that he should have been stopped by Customs officers inside the building.  He believed that Hoque had deliberately asked him to go to Room 3, knowing that Customs officers were lying in wait for him.  In support of his claim, the defence relied heavily on the finding of Hoque’s fingerprints on the insecticide bottle inside Room 3[26].

21.  The appellant testified that on the day of his arrest, he had gone with DW2 to meet Hoque at a tea house in Tsim Sha Tsui.  At the meeting, Hoque asked the appellant to do him a favour and take a bunch of keys to Hoque’s roommate, a man called “Bablu”.  The appellant agreed to do so, and asked DW2 to wait for him at the tea house, believing that the errand would not take long.  In a telephone call, Bablu told the appellant to meet him at the premises, and to use the keys to gain entry to Flat 2D. 

22.  Inside Flat 2D, Bablu appeared and led the appellant into Room 3.  The appellant recalled that Bablu had then received a telephone call, after which Bablu instructed him to bring the cannabis wrapped in tissue paper, together with the keys which he said he did not need, back to Hoque.  The appellant said that this was the first time he had visited Room 3 and, accordingly, he had no knowledge about the drugs on the bunkbed.

23.  As instructed, the appellant then left Room 3 with the keys and the cannabis wrapped in tissue and walked down the staircase.  When he reached the bottom of the staircase, he was pushed against the wall by three men and immediately handcuffed.  He denied making any admission to Customs officers, and said he did not speak English.  He only came to know of the drugs on the bunk bed when he was taken to Customs and Excise Department Headquarters in North Point, Hong Kong Island.

24.  DW2 testified in support of the defence case that on 26 August 2015 he had accompanied the appellant to meet another person at a tea house in Tsim Sha Tsui.  He witnessed that other person pass a bunch of keys to the appellant and instruct him to deliver them to a friend for him[27]. The appellant had told him to wait at the tea house, yet he never returned.

(iv)   Prosecuting counsel’s closing address

25.  In his closing address, Mr Cahill dealt with Hoque’s statement in the following way[28]:

“Now, the prosecution has called two witnesses and we’ve called --- submitted facts and also a statement from a Mr Muzammel Hoque by way of what’s called Section 65B of the Criminal Procedure Ordinance.

Now, that statement goes in just as evidence, untested by cross‑examination although it is, it is still evidence that you can consider and take on board in your assessment of what is the truth in this particular case.”  

26.  In refuting the appellant’s claim of a ‘set up’, Mr Cahill made reference to the contents of the statement[29]:

“The defendant, during the course of his evidence, has attempted to place the blame on this man, Hoque, and saying that Hoque was the man that tipped them off. You might ask yourself, what would be the motive for doing such a thing as that? There’s no motive been produced, no suggestion of what the motive was. I’d suggest to you that it may well be an attempt to cast the guilt onto someone else rather than himself. Now, this man, Hoque, has made a statement as you will have heard, and will see. In that statement, he indicates that he was in fact the tenant of that flat, but his tenancy only lasted for about a month and a half because he felt unwell in those premises, so he left.

If you look at the date of the actual commencement of the tenancy and his occupation of that, you will find that one and a half month after that date, which was in January, would put him leaving the flat well before 26 August 2017, well before this incident took place. To have his fingerprints found on the bottle that was found in the room, what’s so extraordinary about that, members of the jury? He’s already admitted that he had been in that flat for a short period of time.

I submit to you that that takes the case of the defence no further.  In fact, it takes it nowhere, in our submission. Now, that particular statement he made, members of the jury, although it was not subject to cross-examination, has in it, in the beginning of it and at the end of it, particularly at the beginning, indicates that it was made under sanctions of criminal action if he lies, so you may well take that into consideration, in accepting what he says as being the truth.” 

27.  In anticipation of the defence relying on Hoque’s fingerprints inside Room 3, Mr Cahill said[30]:

“Now, members of the jury, fingerprints will be mentioned during the course of the submission by my learned friend, and he may attempt to place the blame on Mr Hoque by pointing to the fingerprints on the pesticide, but I’ve dealt with that, members of the jury, and by looking at his statement, that should answer that quite simply, because as I said before, he had not long left the flat before this raid, if you can call it that, took place.

Now, and it would not be unusual, members of the jury, to find a fingerprint one and a half months later on premises that had been occupied by the people who’d been there before.  I submit to you that this finding of fingerprints takes you nowhere in this case.” 

(v)   Defence counsel’s closing address

28.  In his closing address, Mr McGuinniety criticised the absence of Hoque, among others, from the witness box[31]:

“In this case, you could say, “less is less”.  You need more before you can be convinced.  You need the addition of extra words and phrases and witnesses and evidence to point towards a conviction before you can convict, and you don’t have it.  You don’t have the Chinese woman, you don’t have Muzammel Hoque, you don’t have the exhibit officers.  You have insufficient, precious little, and what you do have is a train wreck of evidence which, from a common sense perspective, does not add up, you might think.”

He then dealt extensively with Hoque’s section 65B statement, which was clearly a major plank of the defence attack on the prosecution case[32]:

“We’re saying, we have said, that the defendant was set up by Muzammel Hoque, who did go to that room and things that we’ve told you about did transpire, we did take the tissue with some drugs in it and we did plead guilty to that. The question for you is what do you make of the other evidence, if it is evidence? My friend has said the points they make take the case nowhere. Maybe they don’t. So, can I now please turn to this absolute gem of a statement. It’s a real cracker and I love it and I’m going to tell you why I love it.

Because, members of the jury, everywhere I look, I see doubts.  Please permit me to just briefly talk about the statement in this way …” 

29.  Having criticised PW1 for being evasive and unforthcoming in relation to his knowledge of, and dealings with, Hoque following the appellant’s arrest[33], Mr McGuinniety then made a sustained and detailed attack on the reliability and truthfulness of Hoque’s section 65B statement[34]:

“But it’s better than that. And permit me to just point you to something which I think says everything. It says nothing, but it says everything. We look at the first paragraph of that statement, it says this, it says, and I’m reading it:

“I, Muzammel Hoque, am single and have resided in Flat J, 5^th Floor, Star Mansion, Tsim Sha Tsui, Kowloon, for about 10 years.  I work as a chef in Wan Chai now.”

So what do I hear perhaps one or two of you saying? Well, possibly one or two of you already know what I’m going to say. It’s an introductory statement or paragraph to a statement, “I, Muzammel Hoque, single, I live at this address, I’ve there for 10 years.” 10 years. Okay. Fine, no problem, that’s where he lives for the last 10 years, and then we go to page 2 and we see that he’s talked about Raja Fashions and Muhammad Axel and signing the tenancy. Well, signing the tenancy, signing the tenancy of where? ‘Oh, the flat where all the drugs were found.’

Why did he sign that tenancy at that place, coincidentally where the drugs were later found, would be because, as he says in line 7, “After he gave me the key of the apartment, then I started to live in the apartment.” Oops, oops, he’s forgotten that he’s told us he already lives somewhere else and has been living somewhere else for 10 years. Oh, so maybe this was like a holiday home for him, or maybe it was something else, you might think. And then the rest of the statement is, ‘I didn’t know that, I didn’t know him, I didn’t know this other fellow, I had nothing to do with the drugs, I never saw those people again, I never went back to the flat.’

I mean, members of the jury, you are all rational, intelligent, mature adults. Do you let this nonsense pull the wool over your eyes. We weren’t going to hear about Muzammel Hoque until I asked the questions. Why not? Because it didn’t suit them to tell you about him. Why not? Because the finger of blame was going that way, and you were never going to hear about Muzammel Hoque, the man who lives in Star Mansions for the last 10 years, but just so happens to have rented this other place where he says he started to live for a month and a half, and then, oh, my goodness, he felt unhealthy living there.

And so he gave the tenancy to somebody else, who he never saw again and never went back there again and never kept a key of. You make your own mind up, members of the jury, what you think of that, but it’s an absolute gem, I think. If you want a shining light, if you want one reason to acquit, if you want one example from this evidence that really doesn’t make sense, if you want something that says, ‘Hey, I don’t get that, that defence counsel’s got one point, let’s talk about it’, every time you talk about it, north, south, east and west, it leads you to one conclusion; Muzammel Hoque is a liar.

This statement is a cover up and you can be pretty sure that this was a setup and if you can’t be sure it was a setup, you must have your doubts, and if you don’t, well, it’s a matter entirely for you. And, please, do not forget, PW1 and PW2, when asked by me, “Do you know the name Muzammel Hoque”, both said, “No.” Either, given that they are to tell the truth, the whole truth and nothing but the truth, they have either forgotten, or they’re not telling the truth. If they’re not telling the truth, why not, and can you, each and every one of you, rely on their evidence? It’s a matter for you.”

It is significant to note, however, that, as with Mr Cahill in his closing address, Mr McGuinniety made no mention at all to the jury of the impugned sentence in the statement[35].

(vi)   The summing-up

30.  In her summing-up, the judge directed the jury in respect of Hoque’s statement in the terms of Specimen Direction 34 as follows[36]:

“The written statement of (Hoque) was read to you. It constitutes evidence in this case just as if (Hoque) had appeared in person before you and given direct oral evidence of matters in that statement. The matters in his statement should be considered by you along with all the other evidence. You are not bound to accept what is in the statement. On the other hand, since there is no evidence to contradict the statement, you might feel that you are able to accept what it says.”

She did not refer to the contents of that statement either in this direction or anywhere else in her summing-up. However, the judge added a sentence, which does not appear in Specimen Direction 34[37]:

“You can accept or reject what (Hoque) had to say.”

We shall return to the significance of this addition in due course when we deal with Ground 3.

(C)    The grounds of appeal

31.  The appellant, represented by Mr Ramanathan SC, with him Mr McGowan, advanced five grounds of appeal by way of a set of Amended Perfected Grounds of Appeal, filed on 30 July 2020.  As a matter of history, there had been no less than five previous sets of perfected grounds of appeal filed by Mr McGowan: Perfected Grounds of Appeal against Conviction, filed on 8 November 2018; Amended Perfected Grounds of Appeal against Conviction, filed on 23 May 2019; Re-amended Perfected grounds of Appeal against Conviction, filed on 13 June 2019; Re-re-amended Perfected Grounds of Appeal against Conviction, filed on 20 September 2019; and Re-re-re-amended Perfected Grounds of Appeal against Conviction, filed on 17 January 2020.  The appellant was granted leave on Grounds 1 to 3 of the Re-re-re-amended Grounds of Appeal against Conviction by the Single Judge, whereas Ground 4 is an additional ground on which leave has not been granted, but which invites the Court to receive fresh evidence under section 83V of the Criminal Procedure Ordinance.  Ground 5 is a general ground averring that there is a lurking doubt about the correctness of the conviction in this case.  These grounds are now contained in a further sixth set of what are termed Amended Perfected Grounds of Appeal against Conviction, under the hand of Mr Bruce SC and Mr McGowan, filed on 30 July 2020.  This plethora of amendments to the grounds of appeal, and what has prompted them, may help to explain why this case has taken an extraordinary 3 years and 9 months to reach this Court following the appellant’s conviction.

(i)   An overview of Grounds 1 and 2

32.  Ground 1 is a complaint principally directed at prosecuting counsel’s failure to call Hoque; or alternatively, to tender him for cross‑examination.  Ground 2, which flows from the complaint in Ground 1, avers that as a result of the prosecution’s refusal to call Hoque, the defence were compelled to adopt an alternative strategy of agreeing to the admission of Hoque’s statement, which strategy led to the applicant not receiving a fair trial.  

33.  By the direction of the Single Judge, Mr McGuinniety filed an affirmation with the Court on 22 September 2020, in which he adopted the contents of an earlier letter dated 13 August 2019, which was a reply to an enquiry by Mr McGowan in connection with the present appeal[38]. Mr McGuinniety’s letter and his affirmation provide the basis of the appellant’s complaints under Grounds 1 and 2. 

34.  In his letter of 13 August 2019, Mr McGuinniety explained that Hoque’s statement was served on the defence shortly before the trial commenced.  Mr McGuinniety said he took the view, as counsel, that Hoque’s claim that he actually lived somewhere else did not sit well with his admission that he had also rented Room 3.  Accordingly, he approached Mr Cahill and requested to have Hoque called as a witness; which request was refused.  As a result, Mr McGuinniety believed that the production of Hoque’s statement under section 65B of the Criminal Procedure Ordinance was the next best thing, which he “could use constructively to show/demonstrate to the jury that he [Hoque] was a most untruthful person”[39]. 

35.  Mr McGuinniety considered that Hoque’s statement was relevant to the credibility of PW1.  He further explained why he did not redact the impugned sentence of the statement:

“[Hoque’s statement] was described by the defence, (by me) in my closing address to the jury as an out an out lie. I did not think to delete part of it, as in its entirety it smacked of an obvious attempt to frame up the defendant which was exactly our case. I did not want any redactions so that the jury could question what had been hidden. It was too incredible for belief that PW1 had denied even knowing the name of [Hoque], this given as said the short time elapsed since the statement had been taken. This line was made very clear to the jury – despite PW1’s denial of knowing of [Hoque] or his statement it was here in all its unredacted glory for all to see courtesy of the statement being admitted. The useful and obvious follow on from this point was that the Prosecution was trying to hide something and that therein laid a reasonable doubt about the truth/ reliability of the prosecution case.

Far from asking/expecting/hoping that the jury would rely on [Hoque’s statement] and anything in the statement, the exact opposite was true and I did pointedly outline to the jury that this statement was nothing but a lie and a cover up. There seemed then and it still seems now that there was no need to specifically delete any particular sentence from the statement which was being held up to the light for the jury to read and disparaged as an obvious tissue of lies.

……

In any event, such decision not to redact was not an oversight but part of our case, nor do I believe that my tactic was wrong or error ridden.

…what I really wanted in this case was to have [Hoque] called as a Prosecution witness – it seemed to me, to be a reasonable request but it was not met with any asset. [Hoque’s statement] was the second best piece of evidence and the only independent way we had to show the jury who he was and confirm his existence – not as someone fictionalised or fabricated but a real person, who had lived in that very flat despite having another home for the past 10 years – someone whose fingerprints had been found on a bottle in the material flat and someone who had framed the defendant for this case and not a non-existent person made up by the defendant to excuse himself but someone who was linked directly to the flat in which the DD were found.”

36.  Unfortunately, the first set of Perfected Grounds of Appeal against Conviction were not filed until 8 November 2018, some 18 months after conviction, by which time Mr Cahill had sadly passed away and was no longer able to respond to the allegations arising from his conduct.

(ii)   Ground 1

37.  The complaint under Ground 1, as it is now framed in the latest Amended Perfected Grounds of Appeal against Conviction, is two‑fold.  Firstly, it is alleged that Mr Cahill had informed the court that he intended to call Hoque to give evidence; and his subsequent “reneging or revision from this ‘undertaking’ without explanation” itself amounted to a material irregularity[40]. Given the existence of evidence connecting Hoque to Room 3, it is argued that prosecuting counsel should at least have tendered him as a witness.  Mr Cahill’s failure to produce Hoque as a witness but, instead, to “adduce his witness statement, particularly un‑redacted, before the jury and invite them to utilise it against the appellant was a further material irregularity, resulting in an unfair trial”[41]. Secondly, Mr Cahill’s decision to adduce Hoque’s statement under section 65B of the Criminal Procedure Ordinance was consistent with his initial undertaking to call him as a witness.  As such, prosecuting counsel must have accepted that Hoque could give material and credible evidence in support of the prosecution case, to the effect that the appellant had lived in Room 3, or at least had access thereto, whilst Hoque did not[42].

(iii)   Ground 2

38.  Ground 2 is said to flow from Ground 1.  It is argued that Mr McGuinniety was, by virtue of prosecuting counsel’s conduct, “compelled to agree to the section 65B admission of (Hoque’s) statement, notwithstanding its prejudicial contents”, resulting in him adopting “both a high risk and … extraordinary strategy” to persuade the jury that a man whom they had never seen or heard from was “incapable of belief”[43].  However, Mr Ramanathan repeatedly made clear before this Court during argument that he was not alleging flagrant incompetence on Mr McGuinniety’s part in adopting the strategy he did.

(iv)   Ground 3

39.  The appellant’s complaint in Ground 3 concerns the judge’s direction in respect of the jury’s evaluation of Hoque’s statement, in which it is said she erred in two aspects.  Firstly, the judge misdirected the jury when she suggested that Hoque’s evidence had not been contradicted, when it was the appellant’s clear evidence that he had delivered the keys to Hoque’s “flatmate” at Hoque’s behest but had never been to Room 3 before[44].  Secondly, the judge did not direct the jury to ignore the hearsay contained in the impugned sentence of Hoque’s statement, namely, that “Afzal said that he decided to live in the above apartment with Minhajaul”; thus permitting the jury to adopt an impermissible line of reasoning that the appellant lived in the premises[45]. 

40.  It was further submitted that the judge should have drawn the jury’s attention to the limitations of Hoque’s evidence in the terms of Specimen Direction 35(1) and (2); in particular, that it contained hearsay and there were weight issues they should consider before accepting it, bearing in mind that they had not had the opportunity of seeing and hearing Hoque in the witness box, and his evidence had not been tested in cross‑examination[46].

(v)   Ground 4

41.  Ground 4 concerns a confession, allegedly made by Hoque to the appellant’s current solicitor more than two years after the appellant’s conviction, to the effect that he had framed up the appellant as a result of pressure from Customs officers to provide information about drug trafficking.  In support of this ground, the appellant mainly relies on the evidence of Mr Jal Karbhari of Messrs Jal N Karbhari & Co, Solicitors, filed with this Court under section 83V of the Criminal Procedure Ordinance.  Having received three affirmations from Mr Karbhari on a de bene esse basis, we noted that Mr Karbhari had properly, and sensibly, informed Hoque, on 18 July 2019, that he should seek independent legal advice with a view to his giving a statement on behalf of the appellant and becoming a witness.  Nothing further has been heard from Hoque and no statement from him has been forthcoming.

(vi)   Ground 5

42.  Ground 5 is a complaint that a lurking doubt as to the fairness of the trial has resulted from the irregularities, misdirections and/or non‑directions identified in Grounds 1 to 4.

(D)    The respondent’s response

(i)   Grounds 1 and 2

43.  Mr Lui, with him Ms Ng for the respondent, cited the decision of the High Court of Australia in Richardson & Ors v The Queen[47]for the proposition that it was for the prosecutor to decide what evidence, in particular what oral evidence, should be adduced at trial, bearing in mind his responsibility to ensure that the prosecution case is presented with fairness to the accused[48]:

“In making his decision as to the witnesses who will be called, he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.”

44.  Mr Lui contended that for a duty to call a witness to arise, the prosecution had to have “laid claim” to a witness by notifying the defence that it proposed to call that witness, usually by naming the witness on the back of the indictment.  In R v Law Loi On[49], in which Richardson & Ors was applied, the Court held that the mere fact that a witness statement had been taken, or even served on the defence, did not mean that the prosecution proposed to call that witness[50].  However, if the statement was served on the defence, but the prosecution did not inform the defence in good time before the trial that the prosecution did not intend to call that witness, particularly when the prosecution had brought the witness making the statement to court on the first day of trial, the prosecution should be treated as having “laid claim” to the witness; unless the witness was considered not worthy of belief[51].

45.  Mr Lui submitted that the circumstances in Law Loi On were manifestly different.  In this case, prosecuting counsel had never intended to call Hoque, whose name was not on the back of the indictment, and whose statement was simply disclosed to the defence as unused material; moreover, he had made it clear to the defence several times that the prosecution were not going to call him.  Accordingly, unlike the position in Law Loi On, it could not be said that he ever “laid claim” to the witness, nor did he lead defence counsel to believe that he was ever “laying claim” to him. Certainly, defence counsel never mounted any complaint to the judge that he had been misled; nor did he invite the judge to intercede with the prosecution to call or tender the witness; nor did he ask the court to make the witness available for cross-examination; and nor, after Hoque’s statement was adduced under section 65B of the Criminal Procedure Ordinance, did he seek to avail himself of section 65B(4)(b) of the Ordinance by applying to the court to “require the person making the statement to attend before the court and give evidence”, a provision of which Mr McGuinniety acknowledged he was aware.

46.  Furthermore, Mr Lui submitted that during the exchange with the judge in the course of PW1’s cross-examination, prosecuting counsel had only ever indicated that he was “contemplating”[52] calling Hoque if the defence questioning of PW1 made it necessary to do so, rather than making a concluded decision to call him.  At that stage, the prosecution could not have been expected to make a final decision without knowing the full extent of the defence attack on the prosecution witnesses.  It was not, therefore, fair to convert prosecuting counsel’s warning of what he might do, into an “undertaking” to call the witness.

47.  Mr Lui did not accept the further complaint that Mr Cahill’s intransigence forced Mr McGuinniety to adopt a strategy that was either highly risky or extraordinary.  At the commencement of proceedings on the day following the discussion of Hoque’s position in the wake of PW1’s cross‑examination, Mr Cahill informed the court:

“I do not propose to call Mr Hoque but I’ve spoken to my learned friend and it was agreed that (the statement) would be put forward … under section 65B of the Criminal Procedure Ordinance.”

Mr McGuinniety expressly confirmed with the court his agreement that the matter would be dealt with in this way.

48.  In this regard, Mr Lui referred to Mr McGuinniety’s letter of 13 August 2019, in which Mr McGuinniety emphasised that he had always firmly believed in his strategy of how Hoque’s statement should be used to advance the defence case; and he had not sought, even at the appeal, to resile from that position.  More pertinently, Mr McGuinniety had specifically stated that he wanted to use the statement in its un-redacted form in order to show that “it smacked of an obvious attempt to frame up the defendant which was exactly our case”; that “the prosecution was trying to hide something and that therein laid a reasonable doubt about the truth/reliability of the prosecution case”; and that the statement was “nothing but a lie and a cover up”.  Thus, argued the respondent, the defence were never actually relying on the statement as the truth of what it contained but as something to show that the case was a ‘frame up’ by Hoque and a ‘cover up’ by Customs officers, in particular PW1 (and PW2).  Such a tactic did not constitute a valid basis to compel the prosecution to call Hoque as a witness, particularly when his name was not even listed on the back of the indictment: see Chuen Lai Sze v HKSAR[53] and HKSAR v CT[54].  Mr Lui relied on the principle in R v Russell-Jones[55] that a prosecutor is not obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the prosecution relied[56].  

49.  The respondent contended that the appellant’s further complaint about the statement of Hoque being produced in an un-redacted state is misconceived.  As Mr McGuinniety saw the advantages of not redacting the statement, and at no stage raised the question of redaction with the judge, it was not open to the appellant to turn round now and allege a material irregularity in respect of that decision.  Mr Lui contended that no blame at all should be cast on Mr Cahill, or the judge, in these circumstances.

(ii)   Ground 3

50.  On the question of whether the impugned sentence in Hoque’s statement was hearsay, Mr Lui submitted that its admissibility would depend on the purpose for which it was introduced.  Here, as earlier explained, Mr McGuinniety wanted the statement with its impugned sentence un-redacted to go before the jury in order to demonstrate that Hoque and the police were deliberately pointing the finger at the appellant as the occupant of Room 3, when it was a lie and part of the ‘set up’ and ‘cover up’ by Customs officers. It was, therefore, admissible for that purpose.

51.  In any event, Mr Lui queried whether a statement attributed to a third party (called “Afzal”) about his future intention of living in Room 3 with the appellant was in fact hearsay: it certainly did not prove that the appellant did live there, for Hoque went on to say that he had never seen Afzal, the appellant or the premises again following this conversation and the handing over of the key.  Moreover, it was never the prosecution case that the appellant had lived in Room 3, nor did Mr Cahill or the judge ever mention the impugned sentence again.  The prosecution case, which was put in both cross‑examination and submission, was that the premises were being used as a storage facility, for which the appellant had the key in order to traffick in dangerous drugs. 

52.  Finally, the respondent submitted that the judge was correct to adopt Specimen Direction 34 in respect of a statement admitted under section 65B, rather than Specimen Direction 35 as now contended for by the appellant.  The judge was plainly aware that the appellant’s testimony was inconsistent with Hoque’s statement and summarised his evidence to that effect. She told the jury that they were not bound to accept what was in Hoque’s statement, and after saying that there was no evidence to contradict it, she nevertheless made clear that they could accept or reject what Hoque had to say. 

(iii)   Ground 4

53.  The respondent submits that this ground is unsustainable.  The appellant was effectively re-arguing the defence case that Hoque had “tipped off” the police about the appellant, a defence which had been put to PW1 and PW2 and firmly denied at trial.  Yet the jury’s unanimous verdict would suggest that they must have accepted PW1 and PW2’s account that they were on routine patrol on the day of the arrest and were not acting on a ‘tip off’; more importantly, the appellant’s case had been rejected.  Whilst accepting that Mr Karbhari’s credibility was not in doubt, there was no further statement from Hoque and the evidence, such as it was, did not come anywhere near to satisfying the “likely to be credible” threshold of section 83V(2)(a) of the Criminal Procedure Ordinance.

54.  Further, the respondent argued that, there is no evidence at all to suggest that Hoque had supplied any information to the Customs officers in the present case.  In this regard, the respondent relied on the respective affirmations of Customs Inspector Lam Chun Ping, made on 22November 2019, and Customs Senior Inspector Ip Wing Chi, made on 25 September 2020, confirming unequivocally that the appellant had been arrested for the present offences during a routine anti-narcotics operation, instead of upon the information provided by Hoque, as alleged by the appellant. 

(iv)   Ground 5

55.  The respondent submits that this ground necessarily depends on the success of Grounds 1 to 4, which are all ultimately without substance.

(E)    Mr McGuinniety’s evidence before the Court

56.  Pursuant to an order made by the Single Judge at the leave hearing, Mr McGuinniety attended the hearing of the appeal for the purposes of giving evidence.  We are grateful for his attendance and for answering our queries in a forthright and candid manner.  The exercise has illustrated two particular problems that appeal courts face whenever fresh counsel and solicitors appear at an appeal in place of the trial lawyers. Firstly, fresh counsel at appeal will invariably have an imperfect and incomplete understanding of the real areas of tension and dispute at trial, the tactical measures employed by counsel to deal with them and the dynamics and considerations underlying such measures.  Moreover, tactical decisions taken as the evidence is unfolding may well change or shift their emphasis as the case develops, just as cross-examination may alter course in the light of subsequent evidence, or evolving or changing instructions.  The process of trial is not static, as it is on appeal.  It is, therefore, very easy for fresh counsel at an appeal to question, or be critical of, a line of defence that seems not have been sufficiently explored or emphasised during a trial, when viewed with the benefit of hindsight and in the light of all the evidence, the speeches of counsel, the judge’s summing-up and any questions from the jury.  However, such criticism of counsel’s conduct at a particular point in the trial, or on a particular issue, can be woefully unrealistic and highly artificial, especially when considered in isolation or out of context.

57.  Secondly, there is, regrettably, a continuing tendency for fresh counsel on appeal to impugn the tactical decisions of trial counsel as ones they would not have made themselves, whilst at the same time not being prepared to characterise them as flagrantly incompetent.  The familiar cry by appellate counsel of an “unfair trial”, as seen through the prism of the appeal papers, is believed to trump all other considerations of competence and tactic on the part of trial counsel.  Yet, how trial counsel sees the issues and the best way to present his case in dealing with them is a vital part of the function of professional counsel in an evolving trial and should not be lightly disregarded.  In the Court of Final Appeal decision of Chong Ching Yuen v HKSAR[57], Sir Thomas Eichelbaum NPJ, with whom all other members of the Court agreed, referred with approval to the judgment of the Court of Appeal of New South Wales in R v Birks[58], where Gleeson CJ (as Gleeson NPJ then was) had said[59]:

“In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at p.241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

… His legal right is to conduct the cores without any regard to the wishes of his client, so long as his mandate is on recalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests are thereby prejudiced.

In Halsbury’s Laws of England (4^th ed.) Vol.3(1), para.518 at p.420, it is stated that:

… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted.  Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client.  This authority extends to all matters relating to the action, including the calling in cross-examination of witnesses, challenging the juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.”

58.  Of these expressions of principle, Sir Thomas held, in Chong Ching Yuen[60]:

“It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”

It will be noted that while counsel is said, “as a general rule”, to have “a wide discretion as to the manner in which proceedings are conducted”, the discretion is not absolute.  Gleeson CJ went on to accept:

“Nevertheless, the courts have recognized that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice.”

He was of course addressing allegations of flagrant incompetence, for which “the bottom line is that to succeed, an appellant must be able to show that he or she received less than a fair trial”[61].

59.  As we have said, Mr Ramanathan repeatedly declined to characterise Mr McGuinniety’s conduct as flagrantly incompetent. If one accepts that his conduct was not flagrantly incompetent, but that he made valid tactical decisions, albeit not ones which fresh counsel on appeal may have made, then we think the appellant has a difficult task in establishing that his trial was unfair for this reason.

(F)    Discussion

(i)   Ground 1

60.  The case that was presented to this Court in the Amended Perfected Grounds of Appeal against Conviction, filed by Mr Bruce SC and Mr McGowan on 30 July 2020, averred that prosecuting counsel had “improperly refused to call or tender (Hoque) for cross-examination”, resulting in defence counsel being “compelled by such conduct to adopt an intrinsically very high-risk and indeed extraordinary strategy of agreeing to the admission of (Hoque’s) statement under section 65B Criminal Procedure Ordinance”, thus leading to an unfair trial[62].  In the written argument in support of the grounds of appeal, drafted by the same leading counsel and Mr McGowan, it was suggested that prosecuting counsel had “resiled” from calling Hoque[63], leading to the “reneging or revision from this undertaking without explanation”[64], which was a material irregularity.  It was asserted that Mr McGuinniety “felt compelled to agree to the section 65B admission of (Hoque’s) statement, notwithstanding its prejudicial contents”[65], which he then “had to try and rebut” by way of a “high risk” and “extraordinary” strategy[66]; “a situation created by the prosecution’s actions”, which “should never have happened”, and which amounted to “an unfair process”[67].

61.  Quite apart from the fact that it has never been suggested that Mr McGuinniety was flagrantly incompetent in his conduct of the appellant’s trial, these rather charged averments and assertions were exposed as wholly untenable by the evidence of Mr McGuinniety before this Court. Firstly, Mr Cahill never gave any “undertaking” to call Hoque from which he later resiled, as a plain reading of the exchanges between counsel and the judge[68] would have made clear.  On the contrary, during their private discussions, as Mr McGuinniety emphasised to us, Mr Cahill steadfastly refused to call Hoque, despite Mr McGuinniety repeatedly, as he described, “pushing”, “pressuring” and “pestering” him to do so. 

62.  Secondly, Mr McGuinniety was not “compelled to agree” to the introduction of Hoque’s statement under section 65B of the Criminal Procedure Ordinance: it was Mr McGuinniety who wanted Hoque’s statement in evidence, and who suggested to Mr Cahill that it should be produced under section 65B of the Criminal Procedure Ordinance.  In answer to a question from the Court as to how it was that the statement came to be adduced, Mr McGuinniety explained:

“A. … I was certainly sure that I wanted that statement in and I would have pressured, persuaded, tried to convince Mr Cahill to get the statement in under section 65. I think …

COURT: Well, that sounds as though the suggestion, the impetus was from you. I just want to establish …

A. Yes, it was. Yes, it would have been, yes. He didn’t want that statement in. …” (Emphasis supplied)

63.  Thirdly, far from an implication that defence counsel was effectively stuck with the prejudicial contents of a statement he could do nothing about, Mr McGuinniety candidly accepted that he wanted the statement before the jury in its entirety and, furthermore, he did not want to cross-examine Hoque on its contents:

“A. I started to take the view that we use the statement without any change to it before the jury in a way which would suggest that the truth wasn’t being told to the jury. And so it was, kind of, in a way, I managed to get the evidence in through the backdoor, if you like … the statement. And once I got it in there, I decided, well, look, this is actually quite good evidence … and I was happy to keep it in that form.”

He later explained to the Court that, once the statement was before the jury, he did not want to cross-examine Hoque for the following reason:

“I didn’t want him twisting his way out of his statement based on some question that was put to him. There’s no way he could twist out of a section 65 and the evidence was there in black and white for the jury to consider.”

Later, the Court summed up the evidence given by Mr McGuinniety as to his approach and asked him whether it was correct:

“COURT. … [H]aving got (the statement) in, you – your position changed slightly because you thought, ‘Right, that drives a coach and horses through the prosecution case, I don’t want Hoque called, I will attack the statement.’

A.   I think that is, as best I recall, exactly right.”

Indeed, Mr McGuinniety later elaborated on his own reasons:

“I don’t know whether or not my decision was right or not, but I took the view that you can’t change that statement and it said that in front of you, read it through and consider whether it’s saying to you, members of the jury, and ask yourself whether or not you can accept the prosecution evidence being the truth, the whole truth and nothing but the truth when there’s that statement and what it says and the police officer or customs officer, I can’t recall, saying, ‘Oh, I don’t remember him,’ was unbelievable.”

64.  Fourthly, the statement having been admitted, Mr McGuinniety was aware that he could still have applied to the court for Hoque to be called under section 65B(4) of the Criminal Procedure Ordinance, yet made a conscious decision not to do so.  The Court asked Mr McGuinniety:

“At the time, as far as you can recall, you were aware that you had a right to ask the judge to cross-examine but you chose not to exercise that right?”

To which Mr McGuinniety answered:

“That’s right”.

65.  With respect to the assertions and allegations made in the appellant’s Amended Perfected Grounds of Appeal against Conviction and supporting written argument, I consider they bear little relation to the position as understood and explained by Mr McGuinniety before this Court.  The differences between the two assessments rather illustrates the problem of fresh counsel on appeal putting forward their own construction of what did or did not happen at trial, because Mr McGuinniety, had he been acting for the appellant on appeal, could not himself have mounted the appeal which is now being advanced.  For he was not forced into a position against his will. Mr Cahill evidently did not want to call a witness, who was obviously not necessary for his case, but whom the defence wished to demolish.  Having made his position clear, he nevertheless agreed to Mr McGuinniety’s approach to put in Hoque’s statement by way of section 65B of the Criminal Procedure Ordinance instead.  The statement having been read into evidence, Mr McGuinniety took a tactical decision not to have Hoque called to give evidence but to attack the statement as a lie and further evidence of an attempt to frame his client up.  Clearly, Mr McGuinniety wanted the prosecution to introduce the statement as it was, in its un-redacted state, and made a deliberate decision not to cross‑examine its maker.

66.  In these circumstances, it seems to me rather artificial to speak in terms of the prosecution “laying claim” to the witness. True it is that the statement was read by agreement during the prosecution case; although, since it was agreed evidence, it could equally have been read during the defence case.  Nevertheless, the prosecution neither wanted, nor needed, Hoque’s evidence; while the defence did not accept it.  It was plainly put in at the behest of the defence for their own purposes, with the acquiescence of the prosecution. 

67.  The notion adopted in Law Loi On of “laying claim” to a witness is a useful way of identifying the responsibility of a party in calling a witness from its conduct in many circumstances.  Where, for example, a witness has been included on the back of the indictment, or has been brought to court by the prosecutor at some stage of the prosecution case, or there has been some other express or implied indication that the prosecution intends to call the witness, whose statement has been formally served on the defence, it should be clear that the prosecution intends to rely on the witness’s evidence, and that the prosecution is “laying claim” to that witness.  However, the notion of “laying claim” to a witness does not identify responsibility for calling a witness in all situations; for example, where the defence would like a witness called or tendered for cross-examination but (i) the prosecution does not want, or need, to call the witness, whom it regards as peripheral to its case; or (ii) the prosecution does not regard the witness as a complete witness of truth. 

68.  While the “laying claim” test, which was articulated for the first time in Law Loi On, may be a useful yardstick in many cases, it is not, with respect, a complete answer.  The test for deciding whether, and if so when, the prosecution is generally responsible for calling a witness has been authoritatively set out by the English Court of Appeal in R v Russell‑Jones[69], a decision which was not unfortunately referred to in Law Loi On:

“The principles which emerge from the authorities and from rules of practice appear to be:

(1) Generally speaking the prosecution must have at court all the witnesses named on the back of the indictment (nowadays those whose statements have been served as witnesses on whom the prosecution intend to rely), if the defence wants those witnesses to attend. In deciding which statements to serve, the prosecution has an unfettered discretion, but must normally disclose material statements not served.

(2) The prosecution enjoy a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered.

(3) The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial. See per Lord Parker CJ in Oliva[70] (supra).

……

(4) The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness’s evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say “incredible”, then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called.

……

(5) It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal.

(6) The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others.

(7) A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies.  To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case.  No sensible rule of justice could require such a stance to be taken.”

69.  However, the Court in Russell-Jones was careful to emphasise that the above principles should not be regarded “as a lexicon or rule book” to cover all cases where a prosecutor’s discretion is involved[71]:

“There may be special situations to which we have not adverted; and in every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general, the court will only interfere with it if it has gone wrong in principle.”

70.  On behalf of the appellant, Mr Ramanathan relied on the first three of the above principles in Russell-Jones[72]; in particular, that Mr Cahill’s discretion miscarried when it was not exercised in the interests of justice by at least tendering the witness for cross-examination, so as to promote a fair trial.  On behalf of the respondent, Mr Lui relied on the last three of the above principles in Russell-Jones[73]; in particular, Hoque did not, from the prosecution’s perspective, give direct evidence of the primary facts of the case, and it was not incumbent on Mr Cahill to call a witness so that the defence could destroy the prosecution case by attacking the credit of PW1 (and PW2).

71.  I have difficulty in saying that prosecuting counsel was, in the circumstances which have been explained to us by Mr McGuinniety, obliged to call, or even tender for cross-examination, a witness whom the prosecution did not want to call, who was not on the back of the indictment and who was at best marginal, at worst simply unnecessary, to the prosecution case.  Moreover, it seems somewhat artificial to regard Mr Cahill as having “laid claim” to a witness, assuming this is a valid test in judging the conduct of the prosecution, when he did not want the statement introduced, when the impetus for its introduction came from defence counsel, and when he simply agreed to put in Hoque’s statement under section 65B of the Criminal Procedure Ordinance.

72.  If I am wrong in my conclusion, and there was some more than marginal basis for the prosecution to call Hoque, I consider that Mr Cahill’s action in agreeing to put Hoque’s statement into evidence under section 65B of the Criminal Procedure Ordinance was, in the circumstances, an acceptable discharge of his duty in any event.  In R v Armstrong[74], the English Court of Appeal referred to Lord Parker CJ’s statement in R v Oliva[75] as the “starting point” of their consideration[76]:

“Accordingly, as it seems to this court, the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination. The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief, then it is their duty, well-recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sort to be proved.”

Of this passage, the Court in Armstrong said[77]:

“The key words in that passage, so far as the present case is concerned, are, of course, “where the witness’s evidence is capable of belief”. In those circumstances, there is a clear duty on the prosecution either to call or to tender the witness.  The reading of the committal statement or parts of it of a prosecution witness would, in our view, be an acceptable alternative to calling that witness.”

As I have pointed out, and as Mr McGuinniety evidently appreciated, the defence could still have mounted an application to have Hoque called to give evidence.  Mr McGuinniety made no such application and took the view that, having managed to secure Hoque’s statement before the jury, he did not want to cross-examine Hoque after all.

73.  In these circumstances, I do not accept that there was any duty on the prosecution to call Hoque; or that the prosecution acted at all improperly by refusing to call him as a live witness.  The defence did not want Hoque’s statement adduced as evidence of its truth but as evidence of its falsity and a ‘cover up’ by the prosecution.  There was no duty on the prosecution, in these circumstances, to call Hoque, or to tender him for cross-examination.  The agreement by the prosecution to the defence request for Hoque’s statement to go before the jury under section 65B of the Criminal Procedure Ordinance did not convert a witness whom the prosecution did not want, or need, to call into one whom they were duty bound to call, or to whom they had “laid claim”.  Accordingly, I would reject Ground 1.

(ii)   Ground 2

74.  In respect of Ground 2, I do not agree that Mr McGuinniety was compelled to adopt a “highly risk(y)” and “extraordinary” strategy.  Firstly, if defence counsel had really felt that he had been forced into adopting such a strategy by the prosecution’s refusal to call Hoque, he could always have raised the matter with the judge under section 65B(4) of the Criminal Procedure Ordinance, or he could have simply have invited the judge to intervene on his behalf and require the prosecution to present the witness for cross-examination.  He made neither approach.  Secondly, he decided instead, as a matter of tactic, that it was better not to have Hoque called for cross-examination because as counsel he could dismantle the statement without Hoque being able to answer back.  In his closing speech to the jury, Mr McGuinniety was thus able to attack Hoque as a liar[78], and the statement as part of a ‘cover up’ for what was a ‘set up’ by Customs officers[79]; moreover, since the prosecution had evidently not called, or wanted to call, Hoque as a witness[80], he urged the jury not to allow the prosecution to “pull the wool over your eyes”[81].

75.  Mr Ramanathan was not prepared to say that Mr McGuinniety’s tactical approach was flagrantly incompetent; and nor am I.  It follows that I do not accept that a highly risky or extraordinary strategy was forced upon defence counsel leading to an unfair trial of the appellant. Ground 2 is not made out.

(iii)   Ground 3

76.  If I may deal with the second aspect of Ground 3 first, Mr McGuinniety has explained to us that he wanted the entire statement of Hoque before the jury, including the impugned sentence.  In his letter of 13 August 2019 to Mr McGowan, Mr McGuinniety said that he did not want any part of Hoque’s statement to be redacted.  He wrote:

“Far from asking/expecting/hoping that the jury would rely on (Hoque’s) statement and anything in the statement, the exact opposite was true and I did pointedly outline to the jury that this statement was nothing but a lie and a cover-up. There seemed then and it still seems now that there was no need to specifically delete any particular sentence from the statement which was being held up to the light for the jury to read and disparaged as an obvious tissue of lies.

I do not think I would change that decision even with the light of hindsight. … I do not think that the fact that I did not redact the ‘offending part’ as you put it was anything like as offensive as you suggest.

In any event, such decision not to redact was not an oversight but part of our case, nor do I believe that my tactic was wrong or error written.  You can say what you like in your submissions as you review the case and how it was handled but the verdict, in my opinion, did not in any way hinge on that ‘offending part’ remaining un-redacted.”

77.  When Mr McGuinniety was specifically asked by the Court why he had not redacted the impugned sentence, he answered:

“… I think that I was trying to use the evidence that you have related … by way of suggesting to the jury, look, they were pointing this guy out. They were trying to finger him. It was definitely a set up that --- and it was just another indication of how they were trying to do it.”

Whether a statement is hearsay depends on the purpose for which it is admitted.  In this case, it is clear that Mr McGuinniety wanted it in evidence to show a deliberate pointing of the finger by the prosecuting authority at the appellant; in other words, it was a necessary part of his attempt to show that there had been a ‘set up’ and a ‘cover up’.  It was plainly admissible for that purpose.

78.  It is true that the impugned sentence was not admissible to show that the appellant had in fact lived in Room 3; and it can also be said that the judge did not direct the jury as to the limits of the admissibility of the statement.  However, Hoque did not say that the appellant was living, or had lived, at the premises; nor did Afzal tell him as much either.  The furthest the assertion went was that Afzal told Hoque that “he decided to live in the above apartment with Minhajaul”, after which conversation Hoque never saw Afzal, the appellant or the apartment again.  The assertion could only at most have been an indication of Afzal’s alleged intention at the time he received the key to Room 3 from Hoque.

79.  If the complaint is that, without a direction as to the ambit of the impugned sentence, the jury might nevertheless have proceeded down an impermissible line of reasoning, the jury were instructed not to speculate, which, they were told, amounted to “no more than guessing or making up theories without good evidence to support them”[82].  But more importantly, neither party was suggesting that the appellant did live in Room 3.  The appellant’s case was that, as a Form 8 recognizance holder, he was required by the International Social Services organisation (“ISS”) to live at the address in Haiphong Road in Tsim Sha Tsui written on his ISS form, which had been his address from almost the time of his arrival in Hong Kong in 2014[83], and for which he had a set of keys[84]. Indeed, it was to that address that the appellant was subsequently taken by Customs officers, following the seizure of the drugs in Room 3[85].  As for Room 3, he testified that he had neither rented nor lived in that room[86], a statement that was not contradicted by the prosecution in cross-examination.

80.  The prosecution’s case was not that the appellant lived in Room 3, but that he was entrusted with the keys to the premises as a storekeeper or caretaker of the drugs in question, from which he would sell them.  That was the case expressly put to the appellant in cross‑examination by Mr Cahill[87]; while in his closing speech to the jury, prosecuting counsel suggested that the term “trafficking” included being “a caretaker, a safe-keeper, … a guard”[88] of drugs, and that the appellant’s possession of keys meant that he must have had knowledge of the presence of drugs inside Room 3[89]. It was never the prosecution case that the appellant had ever lived in Room 3.

81.  Nor did the judge ever give credence to the suggestion that the appellant was living in Room 3.  At the outset of her summing-up, she correctly put the prosecution’s position[90]:

“The prosecution case is that the defendant stored these drugs in Room 3 and/or he was the deliverer or the deliveryman of the drugs in Room 3, he had the keys to the flat and Room 3 for that reason.

……

The prosecution say he, the defendant, was in possession of the drugs in that room.  He knew there were drugs stored in that room and those drugs was stored there to supply to others.”

When she came to deal with Hoque’s statement, as we have seen[91], the judge did not recite any of the contents of the statement and merely instructed them on how they should approach the evidence of the statement.

82.  I am not, in the circumstances, prepared to assume that the jury would have found, on the basis of an unsupported expression of intention by a third party to Hoque, an assertion defence counsel had wanted for his own purposes to be adduced before them, that the appellant did live in Room 3, when it was never the case for the prosecution or the defence that he did; nor was such an implication given by the judge in her summing-up.  I rather agree, with respect, with Mr McGuinniety’s assessment that the case did not in any way hinge on the impugned sentence in Hoque’s statement being un-redacted.

83.  Turning to the first aspect of Ground 3, as will be apparent from the passage in her summing-up[92], the judge did suggest that, since there was no evidence to contradict Hoque’s statement, the jury might feel that they were able to accept what it said. That was not strictly correct: the appellant’s own evidence clearly contradicted Hoque’s statement, albeit not on every aspect of what he had to say.  What we think the judge may have done was to adopt Specimen Direction 34, when it should rather have been adapted to the circumstances of the case.  Specimen Direction 34 reads as follows:

“The written statement of [Mr X] was read to you. It constitutes evidence in this case just as if Mr X had appeared in person before you, and given direct oral evidence of the matters in that statement. The matters in the statement should be considered by you along with all the other evidence. You are not bound to accept what is said in the statement. [On the other hand, since there has been no evidence to contradict the statement you might feel that you are able to accept what it says.]”

It is the final sentence, which appears in the Specimen Direction in square brackets, that was inappropriate because, of course, there was evidence contradicting some of Hoque’s statement from the appellant.  I consider that the judge ought to have omitted the sentence, as indeed the square brackets suggest it may be if the circumstances require it; which here they did.

84.  However, it cannot have been lost on the jury that the appellant’s own evidence contradicted some of Hoque’s statement and that Hoque was party to the ‘set up’ and ‘cover up’.  That was the very defence case.  Indeed, the appellant’s final answer in cross-examination summed his case up: this was the first time he had ever been to Room 3, and Hoque had “fixed the case”[93]. No complaint is otherwise made about the judge’s presentation of the defence case in her summing-up.  Furthermore, as Mr Lui pointed out, the final sentence of the judge’s direction on the approach to Hoque’s section 65B statement in her summing-up, namely, “You can accept or reject what (Hoque) had to say”, is an addition which does not appear in Specimen Direction 34.  Obviously, by adding the sentence, the judge was alive to the fact that the jury could reject Hoque’s statement; and was ensuring that the jury appreciated that fact as well.

85.  The overall effect of the judge’s direction was to inform the jury that Hoque’s statement contained matters, which “should be considered by you along with all the other evidence”.  They were not bound to accept what was in the statement, although they “might feel” able to accept what it said, since there was no evidence to contradict it.  But it was for the jury to say whether they accepted or rejected what Hoque had to say.  As Mr Lui has pointed out, there were in fact several matters, apart from Hoque’s personal details, such as the original assumption of the tenancy of the premises in question by Hoque in January 2015 from Mohammed Afzal (not the same Afzal as the tenant who replaced him) at HK$4,000 per month, which were not contradicted.

86.  Set properly in context, I am confident that the jury would not have been deterred from its task of considering the evidence of Hoque’s statement, along with all the other evidence, and would have understood that it was a matter for them whether they accepted or rejected it.  Certainly, neither counsel saw fit to raise the matter of the judge’s direction on Hoque’s statement with the judge during or after her summing-up, which perhaps reinforces the argument that the slip, if it be one, was either obvious or of no consequence.  Nor was any submission made that the judge should give a direction under Specimen Direction 35, which applies to hearsay evidence admitted under sections 70, 73 and 77F of the Evidence Ordinance, Cap 8.  The fact that neither party requested a similar direction is, as Mr Lui submitted, consistent with neither prosecuting nor defence counsel at trial relying on the statement as proving anything more than Afzal’s reported intention at the time the keys were handed over to him. Ultimately, there is no real substance in either aspect of Ground 3.

87.  If I were to have accepted that the impugned sentence in Hoque’s statement was hearsay, then I would have had to consider whether it would be an appropriate case to consider the application of the proviso to section 83(1) of the Criminal Procedure Ordinance.  That would involve an assessment, in the context of the evidence as a whole, of the risk of the jury embarking on an impermissible line of reasoning that the appellant was in fact living in Room 3.  Ultimately, the Court would have to ask itself “whether a reasonable, hypothetical jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion”[94].  In making that assessment, the Court should bear in mind that it was neither the prosecution nor the defence case that the appellant was living in the premises concerned; the judge never directed the jury on the basis that he was; the matter was never raised with the judge by either counsel; the impugned sentence was never mentioned again by the judge or anyone else after it was read out to the jury following PW1’s evidence; and Mr McGuinniety, as trial counsel, did not consider the failure to redact the impugned sentence “was anything like as offensive as (appeal counsel) suggest”, nor did the verdict “in any way hinge on that ‘offending part’ remaining un-redacted”[95].

88.  In Greenhalghse v Her Majesty’s Advocate[96], the Scottish Court of Appeal had to consider the question of the application of the proviso where the written statement of a female witness, who had given evidence at trial for the prosecution, but whose evidence supported the appellant, had been introduced before the jury but was inadmissible in two particular respects.  The second respect in which it was inadmissible was that it contained a hearsay statement to the effect that the appellant’s co-accused (who had pleaded guilty, inter alia, to a joint charge of assaulting his ex-wife by throwing sulphuric acid at her, and thereafter given evidence against the appellant) had told her, in the absence of the appellant, that the appellant “had done it”, namely “put the acid in her (the victim’s) face”.  The witness accepted that she had made the statement but said it was made under threat from the co-accused.  The trial judge gave no direction to the jury that the statement was hearsay, or how to treat it.  As such, it was submitted on appeal that the absence of such a direction was a misdirection that went to the heart of the issue in the case and resulted in a miscarriage of justice.

89.  The Lord Justice-General, Lord Hope of Craighead (later Deputy President of the Supreme Court), giving the judgment of the Court, found[97]:

“The jury might also not have appreciated that the second passage was not evidence against the appellant because it was hearsay. The content of these passages was, as the advocate‑depute accepted, material to the issue in the case. In our opinion the absence from the charge of any direction on these points was an omission which amounted to a misdirection.”

Nevertheless, in considering whether to apply the proviso, Lord Hope held, in terms that resonate with the test in Hong Kong[98]:

“We have reached the conclusion, without much difficulty, that a reasonable jury, having been given the direction which was omitted in this case, would nevertheless without doubt have convicted the appellant on the evidence properly admissible against him.”

And later[99]:

“The trial judge said in his report that it was not surprising to him that the jury reached a unanimous verdict with regard to the assaults. We agree, and we see no reason to doubt that the jury would have reached the same verdict even if the trial judge had given the direction which was absent in this case.

For these reasons, since we are not persuaded that there has been a miscarriage of justice in this case, we refuse the appeal.”

90.  A similar approach was taken in R v Ng Shun Ying[100], where the Court accepted that the admission of hearsay testimony from two police officers about information they had received as to the active selling of dangerous drugs in certain identified premises “constituted not merely an irregularity in the course of the trial but a material irregularity”[101].  The Court said it had “considered whether or not the material irregularity with which we are concerned affected the deliberations of the jury or, by reference to s 83 of the Criminal Procedure Ordinance (Cap 221), occasioned a miscarriage of justice”[102]. It was satisfied, having regard to the strength of the prosecution evidence, that no miscarriage of justice had actually derived[103].

91.  It cannot be right that simply because a piece of evidence, which is admissible on one basis but hearsay as to its truth, does not receive an appropriate direction from the judge, the whole case must automatically founder on the basis that one cannot say how the jury might have utilised the evidence.  As Bokhary PJ commented in Lam Chi Kwong, “the proviso itself is an instrument of justice”[104].  An appellate court must look at the evidence in the case with perspective, realism and common sense, assess how significant in context the error was and ask whether there is any realistic doubt that a properly directed jury, had it received the direction it should have been given, would have done other than convict.  As I have said, I do not accept that the impugned sentence was in fact hearsay; but even if it was, I do not believe that it would have made the slightest difference to the jury’s reasoning.  Whilst in no way determinative, that was in fact the view of defence counsel at trial, but I agree with him.  I would have had no difficulty in applying the proviso.

(iv)   Ground 4

92.  Although Ground 4 was placed before us, without leave being granted, and relied upon the statement of Mr Karbhari as to his conversation with Hoque more than 18 months ago, on which occasion Mr Karbhari properly told Hoque to seek independent advice before making a statement in support of the appellant, no statement has ever been forthcoming from Hoque on the matter.  Although the veracity of Mr Karbhari is not in doubt, I am not prepared to act on an apparent confession made to him, which has never been confirmed and put into writing by its maker.  I do not find this evidence “likely to be credible”; nor, in the absence of Hoque’s statement confirming the admission, could it conceivably afford any ground for allowing the appeal.  Accordingly, I would decline to receive it.  Ground 4 is not reasonably arguable and I would refuse leave.

(v)   Ground 5

93.  Finally, I do not accept that there is a lurking doubt as to the correctness of the verdict against the appellant.

(G)    Conclusion

94.  For the above reasons, I would dismiss the appeal.

Hon McWalters JA:

A.    Introduction

95.  I agree that grounds 1 and 2 do not provide a basis for allowing the appeal.  However, I am concerned as to whether ground 3 constitutes a material irregularity and if so whether the conviction can be saved by the application of the proviso.

B.    The evidence adduced by the prosecution

96.  This was a case with a very narrow issue for the jury to address, namely, whether the appellant, a Form 8 holder living at other premises provided by ISS and supporting himself by the ISS allowance, was in possession of the dangerous drugs found in the premises to which he had the keys.  At first glance, this seems a very simple case and that was the way the prosecutor initially sought to present it, but as the defence case became apparent it caused problems for this simplistic approach.

97.  This was a C&E investigation that allegedly arose from a stop and search of the appellant on 26 August 2015 as he was exiting the building in which the premises containing the drugs were located. He had in his possession a small amount of cannabis (3 grammes) which, because he was delivering it to another, was trafficking.  He pleaded guilty to this charge. 

98.  He also had in his possession a set of keys which were to the premises containing the drugs.  On entering these premises the Customs officers found the drugs on the upper bunk of a bunk bed.  Also in the premises were 4 electronic scales and 226 unused ziplock bags.  The premises were obviously being used to package and store the dangerous drugs prior to further distribution of them.

99.  A large proportion of the drugs in the premises were cannabis, the obvious inference being that the cannabis that was found in the appellant’s possession came from the stash of cannabis in the premises to which he possessed the keys.  It also allowed for the inference to be drawn that the appellant had knowledge of the presence of the drugs in the premises.

100.  When the drugs were found in the premises the appellant was alleged to have initially denied knowing what they were and then to have admitted that they belonged to him and that he had purchased them from a friend for $50,000 with the intention of selling them to others.  These drugs, which also included traffickable quantities of cocaine, Ice and ketamine, had a market value of $394,247.25. 

101.  The prosecution appears to have adopted a somewhat equivocal attitude to this admission.  Obviously, they would have regarded the initial denial of knowledge as false and whilst they were happy to rely on the admission to selling the drugs, they did not seem to accept that the appellant was the owner of the drugs.  It was this curious approach to ownership of the drugs, together with the way the defence presented its case, that caused problems for the prosecutor in dealing with Mr Hoque.

102.  Thus, there were 3 main pieces of evidence implicating the appellant, namely:

(1)  possession of the keys to the premises containing the drugs;

(2)  possession of the cannabis; and

(3)  the admission made at the time of the discovery of the drugs in the premises.

103.  Each of these pieces of evidence linked the appellant to the premises and (2) and (3) linked him to the drugs in the premises.

104.  There was no other evidence to link the appellant to the premises or the drugs.  The premises were dusted for fingerprints but his fingerprints were not found there.  Significantly, a fingerprint of a person by the name of Muzammel Hoque was found there.  Some items of clothing were present in the premises but no attempt was made to link them to the appellant; in fact, one of the items was a women’s dress.  The presence of these items was apparent from photos taken by a Customs officer of the premises.  As Macrae VP has pointed out in his judgment, the prosecution case was not that the applicant was the occupant of the premises but only that he had access to them.  The identity of the owner of the premises and of any person to whom they might have been tenanted and whether anyone at all was actually living in the premises was, initially, irrelevant to the simple and straightforward way the prosecution presented its case. 

C.    The prosecution position on the role of the appellant

105.  Not only were the prosecution not alleging that the appellant was the occupant of the premises but it also seems that they were not asserting he was the owner of the drugs even though they had a clear admission to that effect.  Certainly the appellant’s Form 8 status, financial means and length of stay in Hong Kong would raise doubts about his ability to finance a substantial drug trafficking operation.  What little was known about him would suggest he was the pawn of others and this is the way Mr Cahill portrayed him.

106.  This is apparent from an exchange that took place prior to the closing addresses when the judge enquired of Mr Cahill how he would be describing the role of the appellant.  Given the unequivocal admission by the appellant to being the owner of the drugs and his intention to sell them, the response of Mr Cahill is interesting:

“COURT: Yes. Just in the absence of the jury, Mr Cahill, you’re accepting or that your case is that he would -- may have been a carer or a keeper of these drugs.

MR CAHILL: Keeper, keeper.

COURT: Keeper.

MR CAHILL: Yes, but falls within the category of trafficking of course.

COURT: I just want -- I know -- I mean, you haven’t been specific whether you say or accept or you are neutral as to whether the keys found on him were given to him as his account is by Muzammel Hoque or not. Or that, in any event, he had the keys to these premises as he was a keeper, whether it be for Muzammel Hoque or for anybody else. I just want to be clear what your case -- or what you’re seeking to say.

MR CAHILL: These keys were being passed around, it appeared, and as such, the -- as far as this defendant is concerned, the strongest part of the evidence is that he was in a caretaking role or a role of -- basically a -- and when I opened to the jury, I used the words -- sorry, my Lady.

COURT: Storekeeping, caretaker...

MR CAHILL: Yes.

COURT: ...or, indeed, a seller.

MR CAHILL: Yes, watchman, lookout, caretaker, seller.

COURT: Sorry?

MR CAHILL: Yes, acting as storeman, watchman, lookout, caretaker.

COURT: I see. And for those reasons, the keys were in his possession.

MR CAHILL: Yes.

COURT: I just wondered whether, just for the sake of the jury, Mr Cahill, you could put your case clearly, which I think you have, but it’s been one part here, one part there. So you’re suggesting to him that all along he knew there were drugs...

MR CAHILL: Yes.

COURT: ...in the -- in Room 3.

MR CAHILL: Yes.

COURT: And as he knew there were drugs in there, he was a storeman, watchman, caretaker or lookout, is that what you’re saying?

MR CAHILL: Indeed, that’s where the evidence points and thus falls under the category of trafficking or dealing in, in fact.”[105]

Early in his closing address Mr Cahill told the jury:

“Now, the allegations, or should I put it the other way around, the prosecution’s case is the defendant well knew that Room 3 held those dangerous drugs. That’s clear from the manner in which this case has been conducted, and number 2, that the defendant was quite prepared to deal and deliver those dangerous drugs, or dangerous drug, as he was found in possession of those drugs and has admitted by virtue of admitted facts a plea of guilty to actually trafficking in that amount of drugs, 3 grams, that he was caught with outside on that staircase at 34 Cameron Road.”[106]

107.  Mr Cahill returned to this issue later in his closing address saying:

“To allow, the big question that echoes through this particular case, is why if this defendant was so innocent, why would a drug trafficker give him keys to premises, not only just the front door, but the front door and the room to these drugs worth over $400,000, leave them in his care and custody without any qualms whatsoever, without any concerns?

Members of the jury, the very fact that he had access in the manner he had, in my submission, is a pointer which indicates, in our submission, that the defendant clearly knew that drugs were in that room and he had knowledge of those drugs.

What part did he play in that, members of the jury? As I mentioned to you, trafficking is a very extensive term, and it covers anything from selling to buying to dealing with in any way, is be a caretaker, a safe-keeper, any position, a guard, anything dealing in a drug, and we suggest to you, members of the jury, that the fact that he was there with keys, with access, care and custody of those keys, he in fact would have had to have knowledge that those drugs were in fact there and he well knew that.”[107]

Finally, Mr Cahill said:

“Now, members of the jury, in summing up to you, I submit that the strands of the circumstantial evidence when put together like a rope become stronger and stronger and stronger, and there comes a time when you can be satisfied that this particular defendant not only had knowledge, but had dealings with these drugs in many capacities, but clearly in the capacity of taking those drugs for Bablu to -- allegedly to this other man, but also the fact that he had keys, possession, care, custody, access to all these -- to 400 -- nearly $400,000 worth of drugs, and I would submit to you no one -- if they were owned by some other drug trafficker, no one would ever, a drug trafficker in his right mind, I submit to you, would hand over the keys to so much drugs and give him total leeway to come and go if he needs be, with the access to the room and all those drugs.”[108]

108.  From Mr Cahill’s closing address it is apparent that the prosecution case was that the premises were used as a place to store the drugs and the appellant had a key to it to enable him to access the drugs. The appellant’s role was as store-keeper, caretaker, watchman, lookout or seller of the drugs and he may have been engaged in performing one or more of these roles and that was why he was in possession of the keys to the premises.

109.  Consequently, the judge described the prosecution case as follows:

“It is the prosecution case that all this evidence links the defendant to the Room 3, as a storer of the drugs for supply to others.”[109]

110.  Of course if he was only performing the roles as portrayed by Mr Cahill then the question is raised, on whose behalf is he doing these things to which the answer must be, presumably, by the person who was the true owner of the drugs.  The way the prosecution presented its case tended to give emphasis to the questions of who, if anyone, did occupy the premises in which the dangerous drugs were found and who was the true owner of the drugs. On the prosecution case these were simply unanswerable questions on which the jury, in the absence of any evidence, should not speculate. 

D.    Muzammel Hoque

111.  Prior to trial a Customs officer took a witness statement from Hoque and it was served on the defence as unused material.  In this statement Hoque said he was the tenant of the premises but he had only lived there for 1½ months after which he moved out as he found the premises unhealthy.  He said he reached an agreement with a friend to sub-let the premises to him and when he handed him the keys to the premises this friend told him that he would be living there with another person whom he identified as the appellant.

112.  Hoque seems never to have been arrested or interviewed under caution.  Notwithstanding that he was the tenant of the premises and his fingerprints were found on a pesticide container within the premises, he was not approached by the investigators until some 18 months after the arrest of the appellant and when he was approached, it was not as a suspect and interviewed under caution but, extraordinarily, as a potential witness.

113.  In my view, it is important to appreciate the impact that the Hoque statement had on the prosecution case.  As I have said, prior to Hoque featuring in the case the prosecution had not led any evidence as to who was the tenant of the premises and if the tenant was not the occupant of the premises, who, if anyone, was the occupant.  The prosecution could have adhered to that strategy but the prosecutor made a considered decision to adopt Hoque’s statement and incorporate it into the prosecution case.

114.  Hoque’s statement meant that the prosecution, as part of its case, was now adducing evidence that there was a tenant and that person was Hoque but that he was not the occupant of the premises. Crucial to the prosecution case was the credibility of Hoque’s claim that he had sub‑let the premises to another.  If this evidence was not believed then the defence case of the appellant being set up by Hoque, the actual occupant of the premises, became much stronger.  It was in the context of Hoque distancing himself from the premises by his assertion that he had sub-let them to another that he made the hearsay statement implicating the appellant as a person who intended to live there.

E.    The defence case

115.  The defence case, as testified by the appellant, was:

(1)  the keys were given to the appellant by Hoque;

(2)  he had been instructed by another who was present in the premises, a person by the name of Bablu, but who left the premises while the appellant was still there, to take the keys and cannabis to Hoque; and

(3)  he did not make the admission which was fabricated by the C&E officers.

116.  Underlying the defence case was a suspicion that the appellant had been set up by Hoque who was accused of being a C&E informant.  It was asserted that the C&E officers were able to intercept the appellant because they were tipped off by Hoque and not because they just happened to encounter the appellant in the course of a routine anti-drugs patrol.

117.  The appellant, an asylum seeker, came to Hong Kong in February 2014, some 18 months before his arrest, for the offences the subject of this prosecution.

F.    Post-conviction events

118.  Hoque pleaded guilty to trafficking in drugs when prosecuted as a result of a police investigation.

119.  Both C&E and police deny Hoque is their informant.

G.    The grounds of appeal

G.1.  Grounds 1 and 2: The refusal of the prosecutor to call Hoque

120.  The death of the prosecutor prevents us from knowing why he refused to call Hoque.  In the circumstances I have set out there could have been a number of reasons.  The prosecutor might initially have thought that he could not form the view that Hoque was capable of belief. Alternatively, he may have formed the view that there was no obligation on him to call Hoque as the prosecution had never indicated he would be its witness, he only had marginal relevance to the prosecution case and calling him would unnecessarily complicate an otherwise simple case.

121.  Whatever the prosecutor’s reason might have been I do not see that he acted improperly in refusing to call Hoque.  I agree that Ground 1 fails.

122.  However, after Mr McGuinniety cross-examined PW1, Mr Cahill reconsidered his position.  A conversation took place between them and it was agreed that instead of the prosecution calling Hoque they would read his statement under s 65B.  Mr McGuinniety cannot now recall how this came about but he was happy with this compromise.  He no longer considered it necessary, or even desirable, to cross-examine Hoque.  Had he sought to do so it is accepted by Mr Lui, for the respondent, that the prosecution could not have opposed it.  It is also accepted by Mr Lui that by reading the statement of Hoque under s 65B in the prosecution case, the prosecution had made him its witness.  As a matter of principle this must be so. 

123.  In the present case it is clear from the comments that Mr Cahill made in his closing address that he, as prosecutor, wished to take advantage of Hoque’s statement and specifically invited the jury to act on it[110]. Macrae VP in his judgment sets out the guidance helpfully provided by Kennedy LJ in R v Russell-Jones on the duties of the prosecutor in respect of the calling of witnesses.  A prosecutor cannot place evidence before the jury which he has already concluded is not capable of belief.  He can only invite the jury to act on evidence to prove the guilt of an accused if he is satisfied that the evidence is worthy, or capable, of belief.  His duty is expressed in this way so as not to confuse his duty with the role of the jury, to whom falls the task of deciding whether the evidence is true.

124.  However, once the statement went in under section 65B the ball was then very much in Mr McGuinniety’s court.  Had he applied for Hoque to be called I do not see how Mr Cahill could have opposed it.  Mr McGuinniety says he was aware of his right to apply for Hoque to be called but made a deliberate decision not to do so.  This was a decision he based on his professional assessment of how he could, tactically, best advance the appellant’s defence.  Ground 2 must fail simply because the factual assertions underlying it have been repudiated by Mr McGuinniety himself.

G.2.  Ground 3

125.  Having decided that the statement of Hoque would be read, Mr McGuinniety had to decide whether to redact any of it.  He asserts he was aware of a sentence in the statement which may be read as a hearsay statement that the appellant would be living in the premises with the friend of Hoque to whom he, Hoque, had sub-let it.  Mr McGuinniety says the decision to leave this sentence in was a tactical decision by him. Essentially, Mr McGuinniety was saying, if I understand him correctly, that he wanted to show the lengths to which Hoque would go to implicate the appellant and suggest that by doing so Hoque undermined his own credibility. 

126.  The first issue to decide is whether the statement contains hearsay.  Mr Lui has made much of the fact that the statement is only a statement of future intention, as opposed to a statement of residency having already commenced.  In my view this does not change its character and it remains a hearsay statement. 

127.  On the assumption that Mr McGuinniety’s defence tactic justified leaving this sentence in Hoque’s statement, and that it was hearsay, it would have required the judge to direct the jury that they could not use the sentence as evidence that the applicant, in fact, took up occupancy of the flat and could only use it for the purpose of assessing the credibility of Hoque along the lines suggested by Mr McGuinniety in his closing address.

128.  In the absence of such a direction was there a realistic risk that the jury might, impermissibly, use the statement for a hearsay purpose, namely to prove that the appellant was, in fact, the occupant of the premises?  Whether there was such a realistic risk has to be assessed in the factual context of the case and in the light of the issues that were before the jury. 

129.  A key issue in this case was whether the appellant could be linked to the drugs in the premises.  In the context of this case, with this issue being at the forefront of the jury’s deliberations, I do not think that it can be said that they would ignore an assertion that the appellant would be living in the premises.  I do not think that the jury was more likely to ignore it, or less likely to attribute any importance to it, simply because it was a statement of future intention.  Of course, this assertion, being directly contrary to the defence case, would also impact upon the jury’s assessment of the appellant’s credibility. 

130.  The Hoque statement was adduced by the prosecutor as part of the prosecution case and he relied on the truth of it to advance his case.  In his closing address to the jury he said:

“I submit to you that that[111] takes the case of the defence no further. In fact, it takes it nowhere, in our submission. Now, that particular statement he made, members of the jury, although it was not subject to cross-examination, has in it, in the beginning of it and at the end of it, particularly at the beginning, indicates that it was made under sanctions of criminal action if he lies, so you may well take that into consideration, in accepting what he says as being the truth.”[112] (Emphasis added.)

131.  Relying on the statement as evidence probative of the appellant’s guilt, it was incumbent on the prosecutor to ensure that it contained no inadmissible evidence.  If it contained evidence which was admissible only for a limited purpose then it was incumbent on him to draw this to the attention of the judge to ensure that she directed the jury accordingly.  To me, it matters not that the prosecutor put the statement into evidence because he was requested to do so.  As the person who had carriage of the prosecution case, Mr Cahill could choose what he wanted to do.  He not only chose to put the statement in, he chose to positively rely on it as representing the truth and he urged the jury to act on it in deciding whether the appellant was guilty. 

132.  The other complaint under this ground of appeal is in respect of a comment by the judge that there was no evidence to contradict the Hoque statement.  This was not only wrong but it left the jury with an unbalanced view of the statement.  The prosecution and the defence had quite separate, and contrary, purposes in relying on the Hoque statement.  As Mr McGuinniety made clear in his closing address he was inviting the jury to conclude that the statement was a complete tissue of lies.

133.  The judge did set out the defence case in her summing-up after setting out the circumstantial evidence relied on by the prosecution.  She said:

“Counsel for the defendant, Mr McGuinniety, on the other hand, says that that is not the only irresistible inference you can draw from those facts. It is the defence case that Muzammel was the tenant of the flat, not the defendant. He had strong links to Room 3 as can be seen from the fingerprints of Muzammel found on a pesticide bottle in the room. There were no fingerprints found of the defendant’s in the room. Mr McGuinniety would say, but for the keys, there is nothing linking the defendant to the flat or the room. The keys were only given to the defendant shortly before his interception, he was in possession of the keys as he was delivering them to Muzammel’s roommate. He was in possession of the keys as he was going to deliver those keys back to Muzammel. This was the first time he had been to the flat or that room. He did not know what was contained in that room and therefore he did not know there were drugs in that flat or in that room.

Taking those facts, Mr McGuinniety says that there is not an irresistible inference that the defendant was in possession of the drugs and nor did he have knowledge of the drugs and therefore the defendant was not trafficking in the drugs in Room 3.”[113]

134.  The judge then dealt with the fingerprint evidence, the appellant’s plea of guilty to trafficking in the small quantity of cannabis, his clear record and then the appellant’s admissions to the Customs officers.  She then turned to the statement of Hoque.  What she had to say is set out at [30] of the judgment of Macrae VP.

135.  I have considered whether the earlier recitation of the defence case was sufficient for the purposes of conveying to the jury what the defence position was in respect of the Hoque statement.  I am not convinced it was sufficient.  There is no mention of the defence case being that Hoque is a liar and that his statement self-evidently contains multiple lies.  Nor is there any mention of how the defence say the jury can conclude that Hoque is lying and the significance of such a conclusion. 

136.  When discussing the Hoque statement the judge effectively gave the standard jury directions for section 65B statements and in this case those directions represented the prosecution case, but not the defence case.  This was not a standard section 65B statement scenario and the judge should have altered the standard directions so that the jury had a clear understanding of the defence position in respect of the Hoque statement. Without such further directions, the directions she did give were unbalanced.

137.  I am not persuaded that it can be safely assumed that the jury would understand that the judge erred when she directed them that they could treat Hoque’s statement as uncontradicted by other evidence. Furthermore, by failing to direct the jury on the defence purpose in putting the Hoque statement before the jury, the judge’s summing-up became unbalanced.

138.  In my view there is merit in this ground of appeal and it provides a basis for allowing the appeal.  This leads to the question of whether the proviso can be applied.  This question has caused me considerable difficulty but in the end I have concluded that it cannot. I recognize the strength of the evidence in this case but I cannot say that the appellant has not lost a chance of acquittal fairly open to him[114]. Furthermore because the hearsay statement went to a material issue in the case and because the summing-up in respect of the Hoque statement was unbalanced and because both of these matters would have impacted upon the jury’s determination of the appellant’s credibility, I do not think that it can be said the appellant received the fair trial to which he is entitled.

Hon Zervos JA:

139.  I have had the benefit of reading the respective draft judgments of Macrae VP and McWalters JA.  I agree that the grounds of appeal fail for the reasons given by Macrae VP in his judgment.  I also agree that Grounds 1 and 2 fail for the additional reasons given by McWalters JA. However, I am unable to agree with the reasoning of McWalters JA in respect of Ground 3 and his decision not to invoke the proviso.  Before I address Ground 3, I wish to make some additional comments in respect of Grounds 1 and 2.  I should point out that in addressing Ground 3, I will need to review in some detail the conduct of the proceedings at trial and the respective cases of the prosecution and the defence.  This is necessary because McWalters JA has raised a number of issues that turn on the evidence at trial and the conduct of the parties. 

140.  As pointed out by McWalters JA, this was a relatively straightforward case that was absorbed by the introduction of the statement of Muzammel Hoque pursuant to section 65B of the Criminal Procedure Ordinance, Cap 200.  This was mainly due to the fact that the Hoque statement was adduced into evidence to support the defence case that Hoque had been the tenant of Room 3 and had allegedly set up the appellant to be arrested by the Customs officers.

Grounds 1 and 2

141.  In Grounds 1 and 2, it is complained that prosecuting counsel was wrong to refuse to call Muzammel Hoque as a witness, and as a consequence the defence were compelled to adopt a strategy of agreeing the admission of his statement which was to the detriment of the appellant. 

142.  Macrae VP in his judgment summarises the principles in the exercise of the prosecution’s discretion to call or tender a witness as stated by Kennedy LJ in Russell-Jones.  It is fundamental that the discretion must be exercised in the interests of justice so as to ensure the conduct of a fair trial.  As a general rule, prosecuting counsel is obliged to call a witness on the back of the indictment, although he has a discretion not to do so if the witness no longer appears to him to be a credible witness, worthy of belief. 

143.  In R v Oliva [1965] 3 All ER 116, the English Court of Appeal held that the prosecution’s duty extended only to calling witnesses who appeared capable of belief, and if a witness could no longer be regarded as creditworthy, then prosecuting counsel had a discretion not to call him.  This rule does not apply to witnesses whose statements have never formed part of the prosecution case, but were served upon the defence as unused material: R v Richardson (1994) 98 Cr App R 174. 

144.  However, I would add that an important adjunct to the rule is the role of a prosecutor as a minister of justice who is required to serve and protect the public interest.  A prosecutor remains under a duty continually to review a prosecution that has been commenced, and if evidence emerges that has a material bearing on the case, in addition to being disclosed, it should be appropriately considered in order to determine what action, if any, should be taken to ensure the fair trial of the accused. 

145.  It is relevant in the present case that Hoque was not a witness whom the prosecution wished to call as part of its case, although his statement had been disclosed in the unused material.  It may have been that prosecuting counsel, Mr Cahill, had concerns about the creditworthiness of Hoque and for this reason was not prepared to call him as a witness to give evidence beyond what was contained in his statement. Alternatively, he may have formed the view that there was no obligation to call Hoque as he was not a witness on the back of the indictment and his statement did not form part of the prosecution case.  Unfortunately, Mr Cahill has since passed away and we are not privy to the reason for his decision.  In all the circumstances, it cannot be said that Mr Cahill acted improperly in refusing to call Hoque.  I would agree that Ground 1 must fail.

146.  Mr Cahill, however, agreed to Mr McGuinniety’s request to have Hoque’s statement read into the record pursuant to section 65B of the Criminal Procedure Ordinance.  As confirmed before us by Mr McGuinniety, this was a tactical decision by him in order to show the appellant had been set up by Hoque.  He wished to rely on Hoque’s statement that he had leased the room and to show that his assertion he had sublet the room to another was a lie.  Hoque’s fingerprint had been found on a pesticide bottle on the table in Room 3, where the drugs were found.  In his closing address to the jury, Mr McGuinniety was very critical of the statement, asserting it contained lies. 

147.  Mr McGuinniety chose not to exercise the option of having Hoque attend court to give evidence under section 65B (4).  He made a deliberate decision not to cross-examine him.  I will come to this later, but it is significant that Hoque’s evidence as to what he said in his statement was not challenged by way of cross-examination.  See HKSAR v Chan Hing Kai [2020] 1 HKLRD 1082 in respect of the rule in Browne v Dunn.

148.  Ground 2 fails because the factual assertions in support of it have been completely disavowed by Mr McGuinniety in his evidence before us.

Ground 3

149.  In Ground 3, it is complained that the judge in her direction to the jury as to the correct approach to the evaluation of the Hoque statement erred by: “(i) misdirecting the jury that his evidence was not in dispute when critical parts of his section 65B statement clearly were in issue as to both fact and credibility; and/or (ii) failing to direct the jury that they could not rely on that part of the statement which contained the hearsay assertion that the appellant lived in an apartment in which the drugs, the subject of Count 2, were found.”

150.  In addressing this ground of appeal it is critical that there be a full and accurate appreciation of the facts and circumstances of the case.  An appellate court must guard against any disadvantage it may have by being focused on a particular issue with only a selection of the record of the proceedings for its consideration, and by not having the first-hand experience of seeing and hearing all the evidence with an overall appreciation of the salient issues at trial.  With this in mind, I will endeavour to address as comprehensively as possible the conduct of the proceedings at trial, by referring to the evidence and the matters in issue between the parties.

151.  There are certain matters that McWalters JA has stated in his judgment that I wish to comment on before I address this ground in detail.  He notes, for example, that the appellant was a Form 8 recognizance holder, whose financial means and length of stay in Hong Kong would have raised doubts about his ability to finance a substantial drug trafficking operation. I am not quite sure whether that inference is readily available as there have been many instances where asylum seekers or unemployed persons have been convicted for drug trafficking in respect of drugs that belonged to them.  He states that what little was known about the appellant would suggest he was a pawn of others and this was the way Mr Cahill portrayed him. 

152.  McWalters JA also queries the prosecutor’s categorisation of the appellant as a carer or keeper of the drugs rather than the owner of the drugs as he allegedly told the Customs officers at the time of his arrest.  This arose after the appellant confirmed in his evidence that, at the material times, he was in possession of the keys to the flat and the room, and was delivering a packet of the drugs from the room.  However, the appellant claimed the keys had been given to him by Hoque and he had never been to the room before and had no knowledge of the drugs present there.  The defence were submitting that Hoque had set up the appellant and that the drugs belonged to Hoque.  In response to the evidence and how it unfolded, Mr Cahill put the prosecution case to the appellant on the basis that he was trafficking in the drugs as either a storekeeper, caretaker or seller of the drugs and that he was knowingly in possession of the drugs for the purpose of dealing in them[115]. In order to prove the charge, it was enough for the prosecution to show that the appellant was in possession of the dangerous drugs for the purpose of trafficking in them.[116] Whilst the appellant had allegedly admitted that the drugs belonged to him, it appears the prosecution felt it could prove its case by focusing on the admissions made by the appellant in his evidence that he was in possession of the keys and had access to the room, and was making a delivery of a packet of drugs at the time of his apprehension.  The prosecution also had to address the admission into evidence of the Hoque statement, and the possible findings of fact that may have been made in respect of it.  This was reflected by the judge in her summing-up to the jury:

“… the prosecution say there is an irresistible inference from all the evidence that the defendant was in possession of the drugs, he knew the drugs were in Room 3, he had the keys. As he was able to go and get the drugs from Room 3 and supply them to others, he was dealing in the drugs. Mr Cahill says the defendant’s case that he was set up by Mr Muzammel is inherently unlikely as there was no motive or reason as to why Muzammel would do so. You may want to consider if Muzammel, a trafficker or tenant of the flat, or anyone, would want to throw away $400,000 just to set up the defendant.”[117]

153.  It is noteworthy that it was only the appellant who testified that he had been given the keys by Hoque.  His friend, Amar Dutta (DW2), whom Mr McGuinniety described as “not the greatest of witnesses”, testified that he was present when someone gave the appellant “a bunch of keys”, but did not know who it was.  It appears he was a very poor witness because Mr McGuinniety in his closing address to the jury said, “So you can either believe him or not believe him.  Or, this is really where I think perhaps you’re most likely to kind of float to, ‘Well, not sure.  Yeah, maybe, could have been.’  And you could say, when you get to wherever you go when you’re deliberate, you could say, ‘Well, you know, so what he was given these keys?  That doesn’t get him off the charge.’  No, it doesn’t, but it’s just another consistency with his general story, ‘I was set up by Muzammel Hoque.’”[118]

154.  Another matter that is mentioned by McWalters JA is the reference to post-conviction events, which essentially concerns the matters raised in Ground 4.  It transpired that Hoque was arrested on 24 January 2018 for trafficking in a dangerous drug and pleaded guilty on 23 January 2019.  He was sentenced to 51 months’ imprisonment.  Whilst in prison custody, he indicated that he would say he was a Customs informant and had framed up the appellant.  This was said by him to the solicitor for the appellant and to another prisoner, who was also convicted of drug trafficking, and who made representations that the appellant had been set up by Hoque.  Evidence was filed that Hoque was not an informant for either Customs or the police, and that the internal records of Customs revealed that the arrest action in the present case was not as a result of information provided by Hoque or anyone else.  No statement was provided by Hoque as suggested.

155.  It was also disclosed by the authorities that the appellant had approached Customs to provide information to them after his arrest.  He first approached Customs, before his trial, on 10 March 2016, but said he wanted to consult a lawyer.  He again approached Customs, after his trial, on 7 April 2018, saying he would like to think about it more, and on 7 May 2018, saying he needed more time to collect more information.

156.  All this revealed very suspicious collaborative behaviour on the part of those involved in this case, which may explain Mr Cahill’s reservation in calling Hoque as a witness for the prosecution.

157.  I will now proceed to deal with this ground, but as I indicated it does require a careful consideration of the evidence and the issues at trial.  An appropriate starting point is the Hoque statement itself.

158.  Hoque said at the outset of his statement that he knew one person called Minhajaul, who he thought was the person arrested by Customs officers called Abedin Minhajaul.  He signed a tenancy agreement for Room 3 through a staff member of Raja Fashions.  He lived there for a month and a half but felt unhealthy and so he sublet it to a person called Afzal.  He did not keep the key to the room, nor go there after Afzal paid him $8,000 deposit money.  At the end of his statement, he said:

“Afzal said that he decided to live in the above apartment with Minhajaul. I have no any contact number of Afzal and Minhajaul, also I never see them again.”

159.  It is complained that this part of the statement contained hearsay evidence that should not have been adduced into evidence and was not addressed by the judge in her directions to the jury.  This complaint is made notwithstanding that Mr McGuinniety did not seek a redaction of the impugned sentence from the statement, nor did he raise any concern or objection about it before the judge.  I will address this later in my judgment but in my view the impugned sentence has been given a prominence in this appeal that it did not receive at trial.

160.  From what was found in the room it would be reasonable to conclude that it was used to store and package drugs for distribution and sale.  Room 3 was a very small room within a flat.  On one side of the room there was a bunk bed and on the other side there was a wardrobe, fridge and table.  At the end of the room was a small bathroom.  To have an understanding of how small the room was, the bunk bed occupied the entire length and nearly half of the room. The drugs, which mainly consisted of cannabis herbs or resin, were laid out on the upper bunk bed together with electronic scales and plastic bags.  Other drugs that were there in various quantities consisted of MDMA, cocaine, Ice and ketamine.  Anyone entering the room would have immediately seen the drugs on the upper bunk bed, particularly the packets of herbal cannabis that were stacked above the top of the plastic box in which they were stored.  There was another bag containing 162 packets of cannabis resin with a total weight of 1.16 kilogrammes, which were clearly ready for distribution and sale.  None of this was in dispute and was the subject of admitted facts[119].

161.  It was an admitted fact that at 6:55 pm on 26 August 2015, Customs officers on patrol observed the appellant at the ground floor staircase of the building in which the room was located[120].  Two Customs officers intercepted him and found in his possession a packet containing 3 grammes of herbal cannabis.  It was an admitted fact that he had pleaded guilty to trafficking in the drugs found in his possession[121].  He testified that he was in the process of delivering those drugs[122]. 

162.  Customs officer, CO 0593 (PW1), arrested and cautioned the appellant.  He asked him if he could speak English and he said he could.  He asked him, “What is the stuff inside the ziplock bag?”  The appellant said “No”.  He asked, “Where did you get the stuff?”  He answered, “The room upstairs on the 1^st Floor.”  He said he had the key to the room in his trouser pocket.  PW1 searched the appellant and found in his possession a bunch of seven keys, including the keys that opened the door of the flat and the door of Room 3.  It was an admitted fact that he was escorted to the flat and the room by Customs officers, where the drugs were found[123]. 

163.  The judge’s summary of the evidence of PW1 on finding the drugs in the room was as follows:

“… He immediately cautioned the defendant in English, he asked the defendant, ‘What is this stuff on the upper bunk of the bed?’ the defendant said, ‘I don’t know.’ He asked, ‘What does this stuff belong to?’ The defendant said, ‘It’s me.’ He asked, ‘Where did you buy the stuff?’ and the defendant said, ‘I buy it from my Pakistan friend, HK$50,000, and I sell to another people.’ The Customs officers asked, ‘What is the keys suit for?’ The defendant said, ‘One is the next building on the 4^th Floor and the other one is Haiphong Road, 9^th Floor.’

Then at 19.05 the defendant and the Customs officers left Fook Kiu Mansion. They went to the building opposite, that is 19-21 Cameron Road and the defendant directed them to go to that building. When they reached the premises the door was locked at Unit 4 on the 4^th Floor and he used one of the keys from the bunch of keys to enter that flat. No contraband was found. Then he took the defendant to another flat in Haiphong Road and used the keys found on him. Again, no contraband was found.”[124]

164.  Evidence of the Hoque statement first emerged in the cross-examination of PW1.  He was asked if he had heard of the name Muzammel Hoque and he said he had not[125]. It was put to him that Muzammel Hoque was the tenant of Room 3 to which he said he did not have knowledge about that[126]. He acknowledged he was one of the investigating officers of the case and confirmed that Muzammel Hoque had recently made a statement to Customs officers[127]. He agreed that at a later stage Muzammel Hoque admitted to living in the flat[128].

165.  Mr Cahill raised an objection with the judge in the absence of the jury.  He explained Hoque had made a statement but did not state, as suggested in cross-examination, that he was the tenant of the flat and living there at the time of the offence[129]. Mr McGuinniety revealed that the defence case was that Hoque lived at the room with his girlfriend.  His fingerprint was found on a bottle inside the room and his girlfriend’s dress was seen in a photograph of the room.  He said Hoque gave the appellant the keys to the flat, which he was returning to him when he was apprehended by the Customs officers[130]. He said he was using the statement to show the Customs officers knew about the case before they apprehended the appellant[131].

166.  Mr McGuinniety then took PW1 through the Hoque statement and confirmed Hoque was a tenant of the room who at some stage lived there[132]. However, PW1 disagreed he had been tipped off by Hoque[133].

167.  The other Customs officer, CO 0578 (PW2), said in cross-examination that Muzammel Hoque was not known to him, pointing out he was only responsible for guarding the appellant[134].  He also disagreed that he and PW1 were waiting for the appellant, together with 4 or 5 colleagues, and that he had been told that a South Asian male would be coming down the staircase with some drugs[135].

168.  At the end of Hoque’s statement, it is noted that it was recorded in writing by CO 1285 and “witnessed” by CO 0593 (PW1)[136]. Therefore, neither PW1 nor PW2 took the statement from Hoque, although PW1 appears to have witnessed the signing of it. 

169.  By agreement between the prosecution and defence, the Hoque statement was read into the record.  It was the only direct evidence that at some time prior to the offence Hoque was the tenant of the room. 

170.  It is noteworthy that the defence case was that the appellant had been set up by Hoque who gave him the keys to the room and tipped off the Customs officers who arrested him.  The defence had the statement read into the record mainly to show that at the commencement of his statement Hoque said he had lived at a particular residence for 10 years but then slipped up by saying he rented Room 3, and that he rented the room to Afzal in order to distance himself from the drugs in the room by saying that he never saw him again and never went back to the room[137]. I should point out that this was the extent of Mr McGuinniety’s criticism of the statement, which he submitted consisted of lies.

171.  The appellant’s evidence was that Hoque “gave me a bunch of keys and told me, ‘Please take these bunch of keys to my roommate, and you will find him when you reach Raja Fashions, and his name is Bablu.’”[138] In cross-examination, the appellant was queried about how he got to the flat.  He said he followed the instructions that were given to him by Bablu, and when he reached the flat, “he told me that, ‘The bunch of keys that Muzammel Hoque gave you, you can use one of the keys to open the door and then come here.’”[139] 

172.  The appellant said that he went to Raja Fashions but could not see Bablu, so he called him.  Bablu gave him directions to the flat.  He used one of the keys to open the door to the flat and inside he saw a Chinese woman cooking.  Bablu was also there.  He said he had never been to the flat before and that Bablu took him to the room[140].  What led him to go to the room was that he needed to go to the toilet and so Bablu told him, “Okay, come along with me inside the room.”  He said Bablu opened the door and he entered the room and headed towards the toilet[141].  While he was in the toilet, Bablu received a call.  “Then Mr Bablu left a thing surrounded by a tissue paper at the corner of the table and told me that, ‘It is for consumption.  The content is cannabis and give it to Mr Muzammel Hoque.’ Then I told him, ‘Muzammel Hoque gave me a bunch of keys.  What should I do with the bunch of keys?’, ‘Tell him that I already have keys and you can give it to -- give it back to Muzammel Hoque.’”  Bablu then left and he was alone in the room[142]. He said after using the toilet, “I took the bunch of keys and the tissue paper and left the -- closed the door and left the place.”[143]

173.  The appellant testified that the Customs officers upon finding the drugs did not ask him any questions.  He claimed he did not understand or speak English and would not be able to answer any questions asked of him[144]. As to how the Customs officers went to his home address at 48 Haiphong Road and gained access with the keys found on him, he said he had the address written on a piece of paper in his pocket which was retrieved by the Customs officers[145].

174.  The judge’s summary of the appellant’s evidence as to the events on that day was as follows:

“On 26 August 2015, he took his friend Amar Dutta and another to help them with their Immigration papers as they had recently arrived in Hong Kong and were also applying to remain in Hong Kong seeking asylum. His friend Amar was staying with him at his home. At about 5 pm that day he and Amar went to Wan Chai to meet his friend Munna (?). While in Wan Chai Muzammel called him and asked if he was going back to Tsim Sha Tsui and if he was to go and see him. He went to Jordan, then Muzammel called him again and asked if he had reached Tsim Sha Tsui. He then went to Tsim Sha Tsui and met Muzammel at the tea house at Mirador Mansions on the 3^rd Floor. When Muzammel saw him he asked if he had finished his work. The defendant told him he still needed to make his prayers and that he would go to pray. Then he prayed on the 3^rd Floor in his friend’s place. He then left that place and went to meet his friend Amar and Muzammel in the tea store.

That was about 6.30 pm, Muzammel gave him a bunch of keys and told the defendant to take this bunch of keys to Muzammel’s roommate and that he would find his roommate, called Bablu, at Raja Fashions. The defendant took the keys and told Amar to wait for him and he would take about 10 minutes. He was given about four to six keys and he went to Raja Fashions. He had two keys in his right front pocket which were to his residence in Haiphong Road and he carried the bunch of keys that Muzammel gave him in his hand.

When he arrived at Raja Fashions he could not find Bablu, so he used his phone to call him. Bablu asked him where he was and then directed him to cross the road to Fook Kiu Mansion. He was directed to use the key that was in his possession to enter the flat. Upon entering the flat he saw a Chinese woman cooking, then Bablu appeared. They chatted for about three to four minutes, then the defendant felt the need to use the toilet. Bablu told him to follow him into Room 3 to use the toilet. Bablu then opened the door. Whilst in the toilet Bablu received a phone call. Bablu left a tissue paper at the corner of the table and told him it was cannabis for Muzammel’s consumption and to give it to Muzammel. The defendant asked Bablu what he should do with the keys that Muzammel gave him. Bablu replied, tell him he already has keys and to give those keys back to Muzammel. After using the toilet he left the flat with the bunch of keys and the cannabis.

This was the first time to the flat. He did not live there, it was not his residence. He did not see any of the items on the upper bunk. He did not know there were drugs in that room on the upper bunk or at all. Items on the upper bunk did not belong to him. He was not asked to store or be the caretaker of these things or drugs on the upper bunk.

He then left the flat and walked down the steep stairs, the keys in his right hand and the cannabis in his left hand. …”[146]

175.  The appellant’s case was that he was in possession of the keys for the purpose of delivering them to Bablu on behalf of Hoque.  He kept possession of the keys because Bablu told him that he did not need them and to return them back to Hoque.  While in Room 3, Bablu asked him to deliver the bag of cannabis to Hoque and he agreed to do so.  He only knew about the cannabis wrapped in the tissue which was left on the table in the room for him to deliver to Hoque.  He was only in the room for a short time and had no knowledge of any other drugs present there[147].

176.  The central theme of the defence case was that the appellant had been set up by Hoque, who was the tenant of the room and to whom the drugs belonged.  This was succinctly summarised by the judge as follows:

“The defence case is simply that his acquaintance Muzammel set him up. Muzammel gave him the keys that evening. The Customs officers had been tipped off. The Customs officers knew of the stash of drugs in Room 3 before they intercepted the defendant. They were already waiting for him on the Ground Floor and it was not fortuitous that they saw him going down to the Ground Floor. The Customs officers knew of the other two premises. The Customs officers had told untruthful evidence of what the defendant is alleged to have said. The defendant gave truthful evidence. He was given the keys to deliver to Muzammel by his flatmate Bablu. He had never been to the flat or room before and never knew the drugs in Room 3.”[148]

177.  In his closing address to the jury, Mr Cahill mentioned at the outset that the prosecution had presented the evidence of two Customs officers, admitted facts, as well as the statement of Hoque pursuant to section 65B of the Criminal Procedure Ordinance.  He then told the jury: 

“Now, the statement goes in just as evidence, untested by cross-examination although it is, it is still evidence that you can consider and take on board in your assessment of what is the truth in this particular case.”[149]

178.  After summarising the evidence of the Customs officers, Mr Cahill then addressed the jury in respect of Hoque’s statement.  He said:

“The defendant, during the course of his evidence, has attempted to place the blame on this man, Hoque, and saying that Hoque was the man that tipped them off. You might ask yourself, what would be the motive for doing such a thing as that? There’s no motive being produced, no suggestion of what the motive was. I’d suggest to you that it may well be an attempt to cast the guilt onto someone else rather than himself. Now, this man, Hoque, has made a statement as you will have heard, and will see. In that statement, he indicates that he was in fact the tenant of that flat, but is tenancy only lasted for about a month and a half because he felt unwell in those premises, so he left.

If you look at the date of the actual commencement of the tenancy and his occupation of that date, you will find that one and a half months after that date, which was in January, would put him leaving the flat well before 26 August 2017, well before this incident took place. To have his fingerprints found on the bottle that was found in the room, what’s so extraordinary about that, members of the jury? He’s already admitted that he had been in the flat for a short period of time.

I submit to you that that takes the case of the defence no further. In fact, it takes it nowhere, in our submission. Now, the particular statement he made, members of the jury, although it was not subject to cross-examination, has in it, in the beginning of it and at the end of it, particularly at the beginning, indicates that it was made under sanctions of criminal action if he lies, so you may well take that into consideration, in accepting what he says as being the truth.”[150]

179.  When addressing the jury in respect of the Hoque statement, Mr McGuinniety said:

“… So, can I now please turn to this absolute gem of a statement. It’s a real cracker and I love it and I’m going to tell you why I love it.

Because, members of the jury, everywhere I look, I see doubts. Please permit me to just briefly talk about the statement in this way. …[151]

…

... And permit me to just point you to something which I think says everything. It says nothing, but it says everything. We look at the first paragraph of that statement, it says this, it says, and I’m reading it:

‘I, Muzammel Hoque, am single and have resided in Flat J, 5^th Floor, Star Mansion, Tsim Sha Tsui, Kowloon, for about 10 years. I work as a chef in Wan Chai now.’

So what do I hear perhaps one or two of you saying? Well, possibly one or two of you already know what I’m going to say. It’s an introductory statement or paragraph to a statement, ‘I, Muzammel Hoque, single, I live at this address, I’ve there for 10 years.’ 10 years. Okay. Fine, no problem, that’s where he lives for the last 10 years, and then we go to page 2 and we see that he’s talked about Raja Fashions and Muhammad Axel and signing the tenancy. Well, signing the tenancy, signing the tenancy of where? ‘Oh, the flat where all the drugs were found.’

Why did he sign the tenancy at that place, coincidentally where the drugs were later found, would be because, as he says in line 7, ‘After he gave me the key of the apartment, then I started to live in the apartment.’ Oops, oops, he’s forgotten that he’s told us he already lives somewhere else and has been living somewhere else for 10 years. Oh, so maybe this was like a holiday home for him, or maybe it was something else, you might think. And then the rest of the statement is, ‘I didn’t know that, I didn’t know him, I didn’t know this other fellow, I had nothing to do with the drugs, I never saw those people again, I never went back to the flat.’

I mean, members of the jury, you are all rational, intelligent, mature adults. Do you let this nonsense pull the wool over your eyes. We weren’t going to hear about Muzammel Hoque until I asked the questions. Why not? Because it didn’t suit them to tell you about him. Why not? Because the finger of blame was going that way, and you were never going to hear about Muzammel Hoque, the man who lives in Star Mansions for the last 10 years, but just so happens to have rented this other place where he says he started to live for a month and a half, and then, oh, my goodness, he felt unhealthy living there.

And so he gave the tenancy to somebody else, who he never saw again and never went back there again and never kept a key of. You make your own mind up, members of the jury, what you think of that, but it’s an absolute gem, I think. If you want a shining light, if you want one reason to acquit, if you want one example from this evidence that really doesn’t make sense, if you want something that says, ‘Hey, I don’t get that, that defence counsel’s got one point, let’s talk about it’, every time you talk about it, north, south, east and west, it leads you to one conclusion; Muzammel Hoque is a liar.

This statement is a cover up and you can be pretty sure that this was a setup and if you can’t be sure it was a setup, you must have your doubts, and if you don’t, well it’s a matter entirely for you.  …[152]”

180.  The respective cases for the prosecution and the defence were summarized by the judge in respect of drawing an inference of guilt, referring to the salient facts and points stripped of the extreme and emotive language of counsel:

“So what is the circumstantial then that the prosecution rely upon to show that the defendant was in possession of the drugs and he knew there were drugs in the flat? The circumstantial evidence is: (1) the defendant was in possession of the keys to the flat and Room 3; (2) the room stored a large amount of drugs; (3) the value of the drugs was almost HK$400,000; (4) he was intercepted carrying drugs when leaving the building with drugs of the same kind that were stored in Room 3; (5) when the Customs officers entered the Room 3 with the defendant there was no one else in that room.

You have heard Mr Cahill say, ‘What person would give another person not connected or related to the flat keys to a room with such a large amount of drugs and to the value of some $400,000 if they did not know what was in that room or they did not have the authority to exercise control over those drugs?’

It is the prosecution case that all this evidence links the defendant to the Room 3 as a storer of the drugs for supply to others.

So, members of the jury, that is the circumstantial evidence the prosecution say you can rely upon to drawn an irresistible inference from the evidence to find the defendant was in possession of the drugs, he knew they were dangerous drugs and he was in possession of these drugs for the purposes of supply to others. If those elements are proven so you, the jury, are sure, then you should return a verdict of guilty.

Counsel for the defendant, Mr McGuinniety, on the other hand, says that that is not the only irresistible inference you can draw from those facts. It is the defence case that Muzammel was the tenant of the flat, not the defendant. He had strong links to Room 3 as can be seen from the fingerprints of Muzammel found on a pesticide bottle in the room. There were no fingerprints found of the defendant’s in the room.

Mr McGuinniety would say, but for the keys, there is nothing linking the defendant to the flat or the room. The keys were only given to the defendant shortly before his interception, he was in possession of the keys as he was delivering them to Muzammel’s roommate. He was in possession of the keys as he was going to deliver those keys back to Muzammel. This was the first time he had been to the flat or that room. He did not know what was contained in that room and therefore he did not know there were drugs in that flat or in that room.

Taking those facts, Mr McGuinniety says that there is not an irresistible inference that the defendant was in possession of the drugs and nor did he have knowledge of the drugs and therefore the defendant was not trafficking in the drugs in Room 3.”[153]

Ground 3(i)

181.  It is complained that the judge misdirected the jury that Hoque’s evidence was not in dispute when critical parts of his statement were in issue as to both fact and credibility.  That is not correct. It would have been quite apparent to the jury, as it was reflected in the summing-up by the judge, that the defence case was that Hoque was the villain in this case.

182.  The judge when directing the jury as to the evidential nature of the Hoque statement, properly followed Specimen Direction 34.  The purpose of the direction was to inform the jury that Hoque’s statement, which had been read into the record, should be treated as if he had given direct oral evidence of the matters contained therein and considered by them along with all the other evidence.  The jury were also reminded that they were “not bound to accept what is in the statement”, although they “might feel” they were able to accept what it says since there was no evidence to contradict it. The judge added to the standard direction, “You can accept or reject what (Hoque) had to say.” 

183.  I do not feel that this direction reflected an unbalanced summing-up by the judge.  The fact that the Hoque statement had been read out to the jury, required the judge to direct them as to how they should regard this evidence together with the other evidence presented to them.  The criticism levelled against the judge for the comment in the standard direction that there was no evidence to contradict the Hoque statement is to overstate any prejudice this remark may have had.  First, the statement had not been challenged by way of cross-examination, and in that sense, it was uncontested. Secondly, the comment about there being no evidence to contradict the statement was prefaced by the qualification that the jury “might feel” they were able to accept what the statement says because there was no evidence to contradict it. Thirdly, the judge further emphasised to the jury, in addition to the standard direction, that it was for them as to whether they accepted or rejected what was said by Hoque in his statement.  Fourthly, the nature and manner of the reliance placed on the statement by the parties, particularly the defence, focused the jury’s attention on the issue of Hoque having set up the appellant.  The jury were repeatedly reminded of the defence case by the judge in her summing-up to them.

184.  Strictly speaking, it may be viewed there was evidence to contradict the statement.  As pointed out by Macrae VP, it could be said there was contradictory evidence from the appellant, but in my view it was somewhat ambiguous and was not necessarily significant given the purpose for which the statement was relied upon, particularly by the defence, namely that it was “a lie and a cover-up”[154] and showed that the appellant had been set up by Hoque.  The prosecution, however, mainly referred to it to explain the presence of Hoque’s fingerprint on the pesticide bottle on the table inside the room.

185.  I am of the view, that given the basis on which the Hoque statement was adduced into evidence and how it was relied upon by the defence, that the jury were not deflected from their task of considering the contents of the statement along with all the other evidence and deciding for themselves whether to accept or reject it in whole or in part.

186.  The task of the jury was to decide the case on the evidence before them.  They were told that the arguments in the closing speeches from counsel could be taken into account if they agreed with them. The jury by its verdict clearly rejected the defence case that the appellant had been set up by Hoque and were satisfied on the evidence that he was trafficking in the dangerous drugs as alleged.

Ground 3(ii)

187.  It is complained that the judge failed to direct the jury that they could not rely on the hearsay assertion that the appellant lived in Room 3.  Hoque in his statement said he had previously leased the room but sublet it to a person called Afzal, who told him he decided to live in the room with Minhajaul. 

188.  In his closing address to the jury, prosecuting counsel, whilst referring to the Hoque statement, did not invite the jury to rely on the truth of what was said to Hoque that Afzal had decided to live in the room with Minhajaul.  The prosecution’s case was that the appellant lived elsewhere and that the room was used to store drugs, and he acted as the storekeeper or caretaker of the drugs, which he would sell.  Furthermore, it was unclear whether the appellant was Minhajaul referred to in the statement, although that was one possible interpretation. 

189.  While it could be said that the statement connected the appellant to the room if the jury were to conclude that the reference to Minhajaul was a reference to the appellant, this matter has to be looked at in context as the prosecution relied on far more compelling evidence, if accepted by the jury, that linked the appellant to the room.  It would appear the impugned sentence did not have any factual significance.

190.  I do not consider there was a realistic risk that the jury might have used the impugned sentence for the purpose of proving the appellant lived in the room, given what was in issue and the reliance placed on the Hoque statement by the defence.  Afzal telling Hoque that he decided to live in the apartment with Minhajaul was evidence of what had been said to him by Afzal and was not relied on to prove the truth of what had been asserted.  There was no further reference or reliance on the impugned sentence by either party in their closing speeches to the jury.

191.  I do not consider that the matters raised under this ground of appeal were so significant that the result of the trial might have been different.  The case against the appellant was strong and this was mainly reflected by the following evidence:

(1)  The appellant was apprehended by the Customs officers carrying a packet of herbal cannabis, having just left Room 3, which he admitted he was trafficking.

(2)  Room 3 is a very small room with a cache of drugs, mainly herbal cannabis and cannabis resin, although there were also various significant quantities of hard drugs, and related paraphernalia for weighing and packaging the drugs, scattered across the upper bunk bed.

(3)  The appellant admitted the packet of herbal cannabis came from Room 3.  He also had in his possession $1,564 cash and two mobile telephones[155].

(4)  The appellant had in his possession a bunch of seven keys, two of which opened the door to the flat and Room 3 respectively, other keys provided access to the premises he took Customs officers to, including where he lived at 48 Haiphong Road.

(5)  When Customs officers entered Room 3, immediately after the arrest of the appellant, there was no one else present in the room.

(6)  Customs officers testified that they apprehended the appellant as part of a routine patrol, consisting of just the two of them, and denied there were other officers present as claimed by the appellant.  They denied the keys were separated with five keys on one ring and two keys on another[156].  They denied they had apprehended the appellant as a result of a tip off from Hoque.  They denied they made no inquiry of the appellant as claimed by him but questioned him in English (which the appellant claimed he did not speak)[157] about the packet of drugs found on him.  He told them he got “the stuff” from a room upstairs.  They next questioned him about the drugs in Room 3.  He told them that he did not know what “the stuff” was inside the plastic bag on the upper bunk bed; “the stuff” belonged to him; and he bought “the stuff” from a Pakistani friend for $50,000 to sell[158].

192.  It follows that I am of the view that it would have been inevitable that the jury would have convicted the appellant.  I would invoke the proviso for the reasons given by Macrae VP.

Hon Macrae VP:

193.  The appeal is, by a majority, accordingly dismissed.

[1] HKSAR v Abedin Minhajaul [2020] HKCA 72, Unrep., 20 January 2020, per McWalters JA.

[2] HKSAR v Abedin Minhajaul [2020] HKCA 807, Unrep., 9 October 2020, per McWalters JA.

[3] Admitted Facts §3 at AB, pp 5-7.

[4] Admitted Facts §8 at AB, p 8.

[5] AB, p 133E-O.

[6] Admitted Facts II at §3, at AB, pp 9-10.

[7] Admitted Facts §7 at AB, p 8, and Admitted Facts II at §4, at AB, p 10.

[8] AB, p 117C-D.

[9] AB, p 117J-K.

[10] AB, p 93K-L.

[11] AB, p 64O-P.

[12] AB, p 94G-I.

[13] AB, p 145I-M.

[14] AB, p 140J-Q.

[15] AB, p 141L-O.

[16] The statement of Muzammel Hoque was taken by PW1 on 10 April 2017: AB, pp 82-83.

[17] AB, pp 200P-201B.

[18] AB, p 201D.

[19] AB, pp 202C-203I.

[20] AB, pp 204N-205C.

[21] AB, p 207C-H.

[22] AB, p 208K-L.

[23] AB, pp 209B-210M.

[24] AB, pp 82-83.

[25] AB, p 76G.

[26] Defence counsel’s closing address: AB, p 65O-R; p 67B-G.

[27] AB, p 124J-K.

[28] AB, p 55L-O.

[29] AB, pp 58L-59C.

[30] AB, p 61C-I.

[31] AB, p 66G-J.

[32] AB, p 68A-F.

[33] AB, p 68H-P.

[34] AB, pp 68Q-70B.

[35] See [19] (supra).

[36] AB, p 25I-N.

[37] AB, p 25N.

[38] A copy of this letter is exhibited in the appellant’s (i) “Further Notice of Motion to Adduce Fresh Evidence”, dated 19 September 2019; and (ii) “Notice of Motion to Adduce Fresh Evidence”, filed on 19 August 2020.

[39] Affirmation of Edward Luke McGuinniety, filed on 22 September 2020, at [4].

[40] Applicant’s Written Argument, dated 18 August 2020, at [20].

[41] Applicant’s Written Argument, dated 18 August 2020, at [21].

[42] Appellant’s Written Argument, dated 18 August 2020, at [21].

[43] Appellant’s Written Argument, dated 18 August 2020, at [22].

[44] Amended Perfected Grounds of Appeal against Conviction, Ground 3(1); Appellant’s Written Argument, dated 18 August 2020, at [24]-[25].

[45] Amended Grounds of Appeal against Conviction, Ground 3(ii).

[46] Appellant’s Written Argument, dated 18 August 2020, at [26]-[28].

[47] Richardson & Ors v The Queen (1974) 131 CLR 116.

[48] Ibid., at 119.

[49] R v Law Loi On (Unrep., Crim App No 663 of 1994).

[50] Ibid., at p 9.

[51] Ibid., at p 10.

[52] AB, p 204S.

[53] Chuen Lai Sze v HKSAR (Unrep., FAMC 2/1999, 23 April 1999) at p2.

[54] HKSAR v CT [2018] 1 HKC 292, at 71.

[55] R v Russell-Jones [1995] 1 Cr App R 538.

[56] Ibid., at 545E-F.

[57] Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, at [47].

[58] R v Birks (1990) 48 A Crim R 385.

[59] Ibid., at 390-391.

[60] Chong Ching Yuen, at [48].

[61] Ibid., at [49].

[62] Amended Perfected Grounds of Appeal against Conviction, Grounds 1 and 2.

[63] Applicant’s written argument against conviction, at [16].

[64] Applicant’s written argument against conviction, at [20].

[65] Applicant’s written argument against conviction, at [22].

[66] Applicant’s written argument against conviction, at [22].

[67] Applicant’s written argument against conviction, at [23].

[68] At [15]-[17] supra.

[69] R v Russell-Jones [1995] 1 Cr App R 538, at 544B-545F.

[70] R v Oliva (1965) 49 Cr App R 298.

[71] Russell-Jones, at 545F-G.

[72] (1), (2) and (3).

[73] (5), (6) and (7).

[74] R v Armstrong [1995] EWCA Crim J0224-2

[75] R v Oliva (1965) 49 Cr App R 298, at 309.

[76] Armstrong, at [47].

[77] Ibid., at [48].

[78] AB, p 69Q.

[79] AB, p 69R-S.

[80] AB, p 66H-I; p 69J-M.

[81] AB, p 69I-J.

[82] AB, p 21E-F.

[83] AB, p 86E-O; p 102D-H.

[84] AB, p 91G-J; p 96D-G.

[85] AB, p 101G-M.

[86] AB, p 94G-I.

[87] AB, p 117C-P.

[88] AB, p 60D-E.

[89] AB, p 60C-F.

[90] AB, p 11P-U.

[91] At [30] supra.

[92] At [30] supra.

[93] AB, p 117O-R.

[94] Lam Chi Kwong v HKSAR (2008) 11 HKCFAR 623.

[95] See the copy of Mr McGuinniety’s letter, dated 13 August 2019, exhibited to the “Further Notice of Motion to Adduce Fresh Evidence”, dated 19 September 2019; and “Notice of Motion to Adduce Fresh Evidence”, dated 19 August 2020.

[96] Greenhalghse v Her Majesty’s Advocate 1992 SCCR 311.

[97] Ibid., at 317A-B.

[98] Ibid., at 317D-E.

[99] Ibid., at 318C-E.

[100] R v Ng Shun Ying [1990] 1 HKC 181.

[101] Ibid., at 184A.

[102] Ibid., at 184F.

[103] Ibid., at 184G.

[104] Lam Chi Kwong, at [29].

[105] AB, pp 214I-215L.

[106] AB, p 54Q-U.

[107] AB, pp 59S-60F.

[108] AB, p 64M-S.

[109] AB, p 22O-P.

[110] The relevant passage from Mr Cahill’s closing address is quoted at [26] of this judgment.

[111] Mr Cahill was referring to the presence of Hoque’s fingerprint on a pesticide bottle within the premises.

[112] AB, pp 58V-59C.

[113] AB, p 23A-L.

[114] Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113, 133 at [55]-[58] where the Court of Final Appeal discussed the application of the proviso to the situation where there was a risk of the jury adopting an impermissible line of reasoning which could impact upon their assessment of the defence case.

[115] AB, pp 116T-117P.  See also AB, pp 214I-216O, where in an exchange with the judge, Mr Cahill confirmed that the appellant delivering the packet of herbal cannabis was evidence of him in trafficking the drugs in Room 3.

[116] AB, pp 12P-13A.

[117] AB, p 34D-J.

[118] AB, p 76G-O and p 124J-N.

[119] AB, pp 5-8, Admitted Facts, at [3]-[6]; 9, Admitted Facts II, at [1].

[120] AB, p 5, Admitted Facts, at [1].

[121] AB, p 10, Admitted Facts, at [4].

[122] AB, p 24B-D. 

[123] AB, p 5, Admitted Facts, at [2].

[124] AB, p 27K-T.

[125] AB, p 140J.

[126] AB, p 140K-Q.

[127] AB, p 141B-F.

[128] AB, p 141G-K.

[129] AB, pp 200N-201B.

[130] AB, pp 202C-203D.

[131] AB, p 205M-Q.

[132] AB, pp 142B-143D.

[133] AB, p 157Q-T.

[134] AB, p 185O-U and p 186B-P.

[135] AB, pp 194E-195L.

[136] AB, p 83.

[137] AB, pp 68Q-69S.

[138] AB, p 89S-T.

[139] AB, p 107C-D.

[140] AB, p 93O-U.

[141] AB, pp 92D-93J.

[142] AB, p 107H-T.

[143] AB, p 93K-N.

[144] AB, pp 102Q-103J. 

[145] AB, p 103K-P.

[146] AB, pp 30G-31N.

[147] AB, p 12D-N.

[148] AB, p 34K-Q.

[149] AB, p 55N-O.

[150] AB, pp 58L-59C.

[151] AB, p 68D-F.

[152] AB, pp 68Q-69S.

[153] AB, pp 22F-23L.

[154] See [76] of the judgment of Macrae VP.

[155] AB, p 27A-C.

[156] AB, pp 91F-92C.

[157] AB, p 84S-U.

[158] AB, 27J-N.