HKSAR v. KHAN ASIF ALI

CACC 322/2018

[2019] HKCA 730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 322 OF 2018

(ON APPEAL FROM HCCC NO 236 OF 2017)

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J U D G M E N T

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1.  On 4 November 2016, the applicant was apprehended on his return to Hong Kong from mainland China with two packets of cocaine in his vest and five packets of cocaine in his trousers pocket.  He claimed at the time that he did not know what was inside the packets.  He said that he had been given $6,000 from an Indian male in Shenzhen to deliver the packets to someone in Fanling.  The applicant participated in a controlled delivery operation but it was not successful.  The total quantity of cocaine narcotic was 1672.60 grammes with a street value at the time of the offence of $2,194,308.20. 

2.  The applicant was charged for trafficking in the drugs and brought before the Magistrate’s Court.  During the course of his committal proceedings, a request had been made on behalf of the applicant to obtain the WhatsApp messages on his mobile telephone.  The Department of Justice in a letter dated 9 June 2017 stated that no message was found on the applicant’s mobile telephone that was relevant to the case.

3.  On 24 July 2017, the applicant pleaded guilty to trafficking in the drugs in the Magistrate’s Court and agreed a summary of facts.  He was committed to the High Court for sentence which was fixed to be heard on 18 October 2017.  The sentencing of the applicant was adjourned to 2 February 2018 because he wished to render assistance to the authorities.  A total of three non-prejudicial statements were taken from the applicant (dated 10 October, 24 October and 13 December 2017 respectively) but he was eventually informed that the information he provided was of no value.

4.  On 2 February 2018, the applicant applied to the court to reverse his plea of guilty.  The application was heard by D’Almada Remedios J (the judge) on 26 and 27 September 2018.

5.  On 25 October 2018, following a ruling on 19 October 2018, refusing his application to reverse his plea of guilty, the applicant was sentenced to 19 years and 6 months’ imprisonment.

6.  On 6 November 2018, the applicant filed an application for leave to appeal against his conviction and sentence.  He also applied for legal aid.  In respect of his conviction, the applicant complained that his plea had not been taken again in the High Court and that he had not been given a chance to have a fair trial.  He also complained that the judge had rejected his claim of pressure from and dissatisfaction with his legal representative in relation to the circumstances leading to his plea of guilty in the Magistrate’s Court.  In respect of his sentence, the applicant complained that the judge inappropriately reduced his reduction for his plea of guilty and enhanced his sentence for international trafficking.  He also complained that the judge had wrongly attributed to him the delay occasioned by the proceedings.  He noted that there had been occasions when the proceedings were adjourned because the prosecution had not provided the call records and text messages on his mobile telephone that had been requested by his legal representatives.

7.  On 22 February 2019, the applicant submitted a lengthy letter to the Court repeating in greater detail the complaints that he previously made about his conviction and sentence.  On 12 March 2019, the applicant submitted another letter to the Court in which he said he had evidence that would clear his name and repeated that the judge was wrong to refuse his application to reverse his plea.

8.  On 20 May 2019, the Court received a handwritten letter from a fellow inmate of the applicant, which was signed by the applicant (the letter is dated 6 May 2019).  By this letter, the applicant abandoned all previous grounds of appeal and substituted them with the grounds contained in the Amended Grounds of Appeal which was attached to the letter.  He confirmed at the hearing of the application that he had discussed the contents of the documents with the author and agreed with them.

9.  The grounds of appeal against conviction are a mix of grounds and submissions and what follows is a short statement of each ground.  Ground 1A complains that the judge erred in considering the application for a reversal of plea in that having determined that the applicant’s guilty plea was unequivocal, she failed to consider whether in “the interests of justice” based on all the facts and circumstances, she should exercise her discretion in the applicant’s favour.  Ground 1B complains that the judge erred in the exercise of her judicial discretion and/or in her reasoning and conclusions of her ruling, refusing the application for a reversal of plea.  Under this ground is listed a series of matters where it is variously complained that the judge had acted on wrong principles, failed to give sufficient weight to relevant matters, mistook the facts, and took the wrong approach in deciding the issue.  This ground was subsequently amended by a letter received by the Court on 6 June 2019 (the letter is dated 23 May 2009).  By this amendment, it is complained that the applicant did not waive legal professional privilege for any and all purposes but only for the limited purpose of enabling the judge to assess the merits of his allegations against his legal representative.  The judge wrongly relied on correspondence between the applicant and his legal representative for the separate purpose of determining the issue of whether he entered his plea of guilty on the basis of having knowledge of the drugs.  Ground 1C complains that the judge erred in directing herself on the burden of proof of the applicant.  Ground 1D complains that the judge’s ruling was unreasonable or plainly unjust.  Ground 2 complains that the wording of the summary of facts was ambiguous and could be taken to state that the applicant knowingly imported the packets but did not know they contained drugs.

10.  The grounds of appeal against sentence briefly stated are as follows.  Ground 1 complains that the judge took into account extraneous matters which were adverse to the applicant in the determination of the sentencing discount that was applicable to him for his plea of guilty. Ground 2 complains that the judge did not correctly consider the assistance the applicant rendered to the authorities by the information contained in three non-prejudicial statements.  Ground 3 complains that the judge erred in holding that the applicant’s participation in Father John Wotherspoon’s anti-drugs campaign merited no incremental discount.  Ground 4 complains that the judge wrongly attributed the delay for the application of a reversal of plea to the applicant when it was the fault of the prosecution by not disclosing the WhatsApp messages in a timely manner.

11.  At the leave hearing, the applicant submitted to the Court a handwritten submission dated 21 June 2019 which was entitled “Applicant’s Reply Submissions/Preliminary Application”.

12.  The respondent had previously filed written submissions in response to the applicant’s initial grounds of appeal but these were replaced by a written submission dated 14 June 2019 which addressed the applicant’s Amended Grounds of Appeal and submissions which were filed on 20 May 2019 and 6 June 2019 respectively.

13.  As explained by the Court of Final Appeal in HKSAR v Shum Wan Foon (2014) 17 HKCFAR 303 a court has a duty to inquire into an application to reverse a guilty plea.  There has to be sufficient inquiry into the defendant’s reason for wanting to change his plea, so that the court is in a position to properly exercise its discretion to permit or refuse the plea reversal.  Fok PJ, who gave the judgment of the Court, noted that:

“What will amount to sufficient inquiries will depend on the circumstances of the case and the basis on which it is alleged the defendant should be permitted to reverse his plea.”[1]

He went on to emphasise that the court’s discretionary power should only be exercised in clear cases and very sparingly.[2]

14.  In the present case, the grounds of the application were that the applicant had been induced by misrepresentation and improper pressure to enter his guilty plea which was not attributable to a genuine consciousness of guilt.  On this basis, the judge conducted a thorough inquiry and refused the application.

15.  After the judge handed down her decision refusing the application of the applicant to reverse his plea on 19 October 2018, the Court of Final Appeal handed down its decision in HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588 on 21 December 2018.  Cheung PJ, with whom the other judges agreed, explicated the principles in relation to an application to reverse a guilty plea before sentence.  He explained that there was an unfettered discretion to allow the reversal of an unequivocal plea after conviction but before sentence, and emphasised that the overriding consideration in the exercise of the discretion must be the interests of justice.  Cheung PJ went on to state:

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

16.  A distillation of the issues advanced by the applicant is whether there was material, in the form of the WhatsApp messages, which should have been considered in deciding the application for a reversal of plea in order to ascertain whether it tended to suggest that the applicant might not be guilty of the offence.  It is on this narrow basis that I am prepared to grant the applicant leave to appeal against his conviction.

17.  I do not find the other points or issues criticising the judge’s conduct of the application, and her decision refusing the reversal of plea on the basis on which it was advanced before her to be reasonably arguable.  I should add that the issue as to whether there was material that tended to suggest that the applicant might not be guilty of the offence was not the subject of the applicant’s application before the judge. However, it had been represented that the applicant considered the WhatsApp messages as evidence of proof of his innocence.

18.  I do not find the complaint about the summary of facts as reasonably arguable in light of all the circumstances, including the fact that the applicant pleaded guilty to the particulars of the charge and that the summary of facts contained a statement that the applicant admitted and accepted that he knowingly imported the drugs seized into Hong Kong.

19.  I am also prepared to grant leave to the applicant to appeal against his sentence on the grounds submitted which I find are reasonably arguable.

20.  I direct that legal aid be granted to the applicant in relation to his appeal against conviction only on the ground mentioned in paragraph 16, and in relation to his appeal against sentence on the grounds mentioned in paragraph 19.