ALI AKBAR MIRZA v. HKSAR

HCAL 23/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 23 OF 2008

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D E C I S I O N

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1.  The applicant is applying for leave to issue judicial review against the decision of the Chief Secretary of Administration as the delegate of the Chief Executive in refusing reference of his case to the Court of Appeal under section 83P of the Criminal Procedure Ordinance (Cap. 221) (“CPO”).

Background

2.  In March 2002, the applicant was convicted before Deputy Judge Longley of the High Court and a jury in HCCC 313/2001 of 1 count of trafficking in a dangerous drug and was sentenced to 13 years imprisonment.

3.  The prosecution case was that the applicant was observed taking a bag to the lodging of a Ghanian male Boateng and left.  Boateng’s room was searched and 6 packages containing a mixture of 310 grammes of heroin hydrochloride was found.  The applicant’s finger prints were lifted from the sticky side of the adhesive tapes on the heroin packets.

4.  The applicant’s lodging was also searched.  6 “knee pads” made of elastic bandages all containing traces of heroin were found.  Telephone numbers of Boateng’s current and previous addresses were found in the applicant’s belongings.  Under caution, the applicant said he proposed to use the knee pads to smuggle mobile phones back to Paskistan.

5.  Boateng pleaded guilty to trafficking in the heroin found in his room and gave evidence for the prosecution implicating the applicant as the one who brought the drugs in a bag to his room.

6.  The applicant gave evidence and denied involvement with the drug.  He was found guilty by the jury.

7.  The applicant applied for leave to appeal against conviction in CACC 318/2002 and the application was dismissed by the Court of Appeal in November 2003.

8.  In September 2005, the applicant’s wife petitioned the Chief Executive on humanitarian grounds.  The petitioned was rejected in October 2005.

9.  In November 2006, the applicant applied for leave to appeal against conviction to the Court of Final Appeal.  In December 2006, the Appeal Committee dismissed the application.

10.  On 20 June 2007, the applicant presented the present Petition to the Chief Executive under section 83P of CPO.

Applicant’s grounds

11.  The grounds contained in the Petition can be summarized as follows:

(1)     Exhibit P35 (the preliminary test result conducted by Inspector Gary Hon showing traces of heroin on one of the knee pads) was unfounded or fabricated;

(2)     Exhibit P35 was inadmissible.

12.  The grounds contained in the application for leave to apply for judicial review can be summarized as follows:

(1)     The Chief Executive did not give reasons for his refusal to make a reference;

(2)     Exhibit P35 was not served with the committal bundle in accordance with the Magistrates Ordinance (Cap.221) but was hidden and came out all of a sudden in the middle of the trial;

(3)     The grounds of appeal presented to the Court of Final Appeal were defective and made by improper persons (known and unknown) from elsewhere to nail him down.

13.  The applicant also argued the following grounds in his submissions to the Court:

(1)     The traces of drugs found in the knee pads were contaminated elsewhere;

(2)     The trial was unfair because defence counsel was paid by the Government and incompetent;

(3)     The interpreter did not translate as fast as usually done in court so that he could not argue the case himself in place of counsel;

(4)     There were mistakes in the English translation of the witness statement of Chief Customs Officer (“CCO”) Wong Hon-chiu who gave evidence at the trial;

(5)     The finger print evidence was fabricated in that the expert only concentrated on the finger prints said to have made a match and avoided those with insufficient identical ridges.

Relevant principles

14.  The test for granting leave for judicial review is one of reasonable arguability, meaning one which enjoys a realistic prospect of success, and is a higher threshold compared to the potential arguability test in the past, and the same test should be applicable whether the issue is one of law (e.g. statutory construction) or fact (e.g. procedural fairness involving investigation of facts)  (see Chan Po Fun v Winnie Cheung [2008] 1 HKLRD 319 (CFA) per Li CJ at paras. 12-16). 

15.  Section 83P of CPO provides that:

“Review by Court of Appeal of cases tried on indictment

 (1)    Where a person has been convicted on indictment or been tried on indictment and found not guilty by reason of insanity, or been found by a jury to be under disability, the Chief Executive may, if he thinks fit, at any time either-

(a)        refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; or

(b)    if he desires the assistance of the Court of Appeal on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court of Appeal shall consider the point so referred and furnish the Chief Executive with its opinion thereon accordingly.

(2)           A reference by the Chief Executive under this section may be made by him either on an application by the person referred to in subsection (1), or without any such application.

(3)           For the avoidance of doubt, it is hereby declared that this section also applies in a case where an appeal has been heard and determined by the Court of Final Appeal.”

16.  In R v Secretary of State for the Home Department, ex parte Hickey & ors (No.2) [1995] 1 WLR 734, the English Court of Appeal held that in considering whether to refer a case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968, the Secretary of State should make a reference only where there was a new case to be heard because of substantial fresh evidence or other considerations.

17.  Simon Brown LJ said at p. 741B of the report:

“… Provided only and always that there indeed exists substantial new evidence or other considerations in the case and that he will not, therefore, be inviting the court merely to re-examine essentially the selfsame case as it will already have rejected, the Secretary of State should to my mind ask himself this questions: could the new material reasonably cause the Court of Appeal to regard the verdict as unsafe?  If it could, then I would expect him without more ado to refer the case for hearing as an appeal…”

18.  His Lordship also referred at p. 740D to Ex parte Cleeland (8 October 1987 unrep.) per Bingham LJ:

“The decision to refer is that of the Secretary of State if he thinks fit.  The use of that language does not, of course, make his decision proof against judicial review but it does make it quite plain that the decision is entrusted to him and it is one with which this court should not, in my judgment, at all readily interfere unless strong grounds for doing so are shown.”

Discussion

19.  Exhibit P35 is a machine print-out of the preliminary drug test conducted by Inspector Gary Man (dec’d) showing a positive result on one of the knee pads.  The prosecution did not produce Exhibit P35 as it relied on the formal tests conducted later by the Government Chemist Dr. Cheng Wing-chi (who testified at the trial) which found traces of heroin on all 6 knee pads.  Inspector Man died shortly before the trial.  CCO Wong who witnessed the test by Inspector Man testified as PW8 at the trial.  Exhibit P35 was produced during the cross-examination of COO Wong.

20.  Defence counsel sought to exclude the evidence of the traces of heroin on the knee pads on the ground that its prejudicial effect outweighed the probative value, because the applicant was not charged with any offence relating to the traces of heroin on the knee pads.  Counsel for the prosecution submitted that evidence relating to traces of heroin was admissible to indicate guilt on the part of the applicant and to rebut the applicant’s allegation in his statement under caution that he used to knee pads to traffick in mobile phone as opposed to heroin.  The trial judge considered R v Sang [1980] AC 402 and refused to exercise his discretion to exclude the admissible evidence.

21.  An issue at the trial was whether the knee pads were contaminated by the handling Custom Officers.  The learned trial judge summed up to the jury on the possibility of contamination and fabrication:

“Well, members of the jury, in order to attach any significance to the finding of traces of heroin on the knee pads, you would have to be sure that there was no possibility of any cross contamination or indeed, any possibility of planting by any of the Customs Officers or any one else, of heroin on the knee pads.”

22.  In the judgment of the Court of Appeal refusing the application for leave to appeal against conviction, Stuart-Moore VP said the subject of fabrication of evidence and in particular the finding of heroin on the knee pads was fully canvassed at trial and the judge dealt with the evidence with meticulous care providing the jury with a scrupulously balanced analysis of the topic and points made on the applicant’s behalf were explained with commendable clarity in a way that the jury could not have failed to follow.  His Lordship concluded that the evidence against the applicant was overwhelming and the application was dismissed as there were no grounds of any merit.

23.  Exhibit P35 was produced upon the cross-examination of CCO Wong by defence counsel.  Perhaps, the applicant’s counsel might not have seen Exhibit P35 up to that point, but there was no consequential application during the rest of the trial which continued for few more days.  In any case, there was no ambush as CCO Wong had stated in his witness statement that he witnessed the test by Inspector Man.

24.  The mistake in the translation of the witness statement of CCO Wong is a red herring as CCO Wong gave oral testimoney and the statement was not produced.  Counsel for the defendant was bi-lingual and there was nothing to this point.

25.  Nor do I see any merit or basis in the complaint against the competence of counsel, or fabrication of the finger print evidence.

26.  The applicant alleged that the grounds of appeal submitted to the Court of Final Appeal were not prepared by him but by some unknown person and posted to him.  It is hardly credible as those grounds argued, in the main, that Exhibit P35 was wrongly admitted and hence, were in the applicant’s favour.  The applicant submitted that those grounds omitted the point that Exhibit P35 was hidden from pre-trial disclosure and was only produced in the middle of the trial.  R v Sang never sanctioned the hiding of evidence and it raises a point of law of great and general importance. 

27.  As said, the prosecution only relied on the formal tests by Dr. Cheng, which were superior to Exhibit P35 and did not derogate from it.  Whatever late discovery of Exhibit P35, I can see no ground of appeal arising from any substantial new evidence or considerations which could reasonably cause the Court of Appeal to regard the verdict as unsafe and unsatisfactory.  The overwhelming evidence dictated that there is no miscarriage of justice.

28.  As to the giving of reasons for the refusal to make a reference, Mr. Wong, for the respondent, referred to CP Ships USA Llc (formerly known as Lykes Lines Ltd Llc) v. Chief Executive of HKSAR CACV 204/2007 (19 September 2007) where the applicant applied for judicial review against the Chief Executive’s rejection of the petition for the return of certain ammunition seized upon import without the necessary licence under the Import and Export Ordinance (Cap. 60).  Rogers VP said that as a general rule, it is not necessary to give reasons for administrative decision and none of the matters raised therein was sufficient for the departure from it (see para. 27).

29.  Perhaps if the applicant had raised any fresh evidence or considerations giving rise to reasonably arguable grounds for allowing the appeal, the lack of reasons for the refusal to make a reference might have been relevant in the granting of leave.  However, that is not the case here.

Conclusion

30.  In the premises, leave to apply for judicial is refused.