HKSAR v. KHAN ASIF ALI

CACC 166/2020

[2023] HKCA 943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 166 OF 2020

(ON APPEAL FROM HCCC NO 369 OF 2019)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court)

1.  The appellant was originally tried on a single count of trafficking in a dangerous drug[1], namely 1,989.4 grammes of a solid containing 1,672.6 grammes of cocaine but the jury were unable to agree upon their verdict. Accordingly, the appellant was tried again on the same count before Yau J (the “judge”) and another jury. He was convicted on 17 September 2020 and was subsequently sentenced to 24 years’ imprisonment on 21 September 2020. On 19 August 2022, leave was granted to the appellant to appeal against his conviction on Grounds 4 to 6 of the perfected grounds of appeal by a single judge[2].

2.  At the present appeal, Mr Mughal, on behalf of the appellant, confirmed that the appellant would not be renewing those grounds for which leave had not been given.

3.  After having heard legal submission from the parties, we found against the appellant on Grounds 4 to 6 and dismissed the appeal. We said that we would hand down the reasons for our decision in due course. This we now do.

The prosecution’s case

4.  The appellant is a Pakistani national who has lived in Hong Kong for over 20 years[3]. On 4 November 2016, at 16:44 hours, he was intercepted by Customs officers in the Green Channel of the Lo Wu Control Point in the New Territories when he returned to Hong Kong from Shenzhen. He was carrying a duty-free plastic bag with a bottle of whisky inside. A total of 7 packets each tightly sealed with opaque adhesive tape[4] containing the dangerous drugs particularized in the indictment were found in the various pockets of the appellant’s jacket and trousers. The retail value of the drugs was over HK$2 million[5]. He was found to have left Hong Kong at 16:06 hours, some 38 minutes earlier[6].

5.  Under caution, the appellant denied knowledge of the drugs. He claimed to have received the packets from an unknown Indian male at a KFC outlet in Shenzhen and was told to deliver them to Fanling Railway Station in Hong Kong for a reward of HK$6,000[7].

6.  After his arrest, the appellant agreed to participate in a controlled delivery operation conducted between 21:00 and 22:30 hours the same day in the vicinity of Fanling Railway Station. However, during the operation there were no calls made to the appellant’s mobile telephone and no one appeared to collect the drugs[8].

7.  The mobile telephone in the possession of the appellant contained the following WhatsApp audio messages between the appellant and another person in Urdu whilst he was in custody[9] (“Exhibit D1”)[10]. According to the appellant this other person was Naeem, a close friend of his. The messages were transcribed and translated. “A” allegedly denoted Naeem, while “B” denoted the appellant. The contents in the square brackets are the appellant’s testimony at trial.

S.No	Speaker	Time	English translation
1	A	16:48	(Incomprehensible) Where did (you) reach?
2	B	18:00	Friend, tell that person [meant the person for whom Naeem told him to deliver the packets]. There is a problem now. (He) should do something now.
3	A	18:01	Where are (you)? Please do let (me) know. Where are (you)?
4	A	18:01	So there is a problem? Tell me, what happened?
5	B	18:01	They have detained me friend and all the ‘second-grade good’ [meant the goods inside the packets were not telephones] (unlawful items/materials/substances) have been found. What have you done with me, friend?
6	A	18:01	Are (you) in Hong Kong or China? Tell (me) where you are?
7	B	18:01	This is my home (phone) number [referred to his younger brother’s number sent at about 18:01 hours]. Now (I) don’t know when this matter will be sorted out. You save (the number) and help them [meant the appellant’s parents] friend. Make a phone (call) if any problem…
8	B	18:02	Please you catch the one who gave this. Friend, who is that person? You said this is a bottle and these five boxes/cartons [the appellant meant “packets” but was translated into “boxes/cartons”], I brought it, now see what is found inside.
9	A	18:02	Where are you? Now (you) are in Hong Kong or in China? Please do let me know this, where exactly you’re?
10	A	18:02	Where are (you)? On which side are (you)? Tell (me) this, I will check. (You) are on which side?

8.  It was the prosecution’s contention these WhatsApp audio messages were in fact a tip-off to the receiver of the drugs.

The defence case[11]

9.  The appellant testified that he was tricked into bringing the 7 packets into Hong Kong. He did not know they contained dangerous drugs.

10.  The appellant said that apart from working as a security guard, he also carried goods for other people between Hong Kong and the mainland from time to time. These people included his good friend Naeem Ahmad and another person called Indir.

11.  He said that on 4 November 2016 Naeem instructed him to go to Shenzhen to collect some goods from Indir and bringing them back to Hong Kong. When he went there the first time the goods were not ready. Indir gave him 3 boxes and some clothing samples instead. He brought those back to Hong Kong and gave them to Naeem. A few hours later he went to Shenzhen a second time. On this occasion he did not see Indir but an Indian male gave him a plastic bag containing the 7 packets. He said he had seen this Indian with Indir on a number of occasions before, but he did not know the name of this Indian male. He was instructed to call Naeem after arriving at Fanling Railway Station with the packets. He claimed to have put the plastic bag containing the 7 packets through an X-ray machine on the mainland side of the border without incident[12].

12.  At the request of Naeem, he purchased a bottle of whisky at a duty free shop at the border. In order only to carry one bag, he removed his mobile telephone, wallet and other personal items from his pockets and placed them into the plastic bag containing the bottle of whisky. He removed the 7 packets from the plastic bag and placed them inside his emptied pockets[13]. He discarded the other plastic bag.

13.  He said that after the mobile telephone was seized by customs officers[14], it was left on the table in front of him when a Customs officer (“PW2”) left him on his own in the detention room.[15] This was denied by PW2.[16] The appellant noticed a missed audio incoming WhatsApp message.[17] He listened and found out it was sent by Naeem at about 16:48 hours.[18] He claimed that messages transcribed above were voice messages exchanged between him and Naeem between 18:00 and 18:02 hours, although the display of Naeem’s name on his telephone was “China”[19]. At about 18:01 hours, he sent a Pakistan telephone number of “GHAR GHAT” (meaning “home”) to Naeem,[20] which the appellant said was his younger brother’s number in Pakistan.[21]

14.  The appellant disagreed that the audio messages were an attempt to tip off Naeem[22] but stressed that they demonstrated his lack of knowledge and innocence. He said he had always trusted Naeem until he was told by a fellow inmate named Ali Qasim that he had also been deceived by Naeem into committing a drugs offence in similar circumstances.[23] He asserted that at the material time he did not know, and had no reason to suspect, that there were dangerous drugs in the packets.[24]

Grounds of appeal and appellant’s submissions

Grounds 4 and 5: direction in respect of post-offence conduct

15.  Both grounds concern the WhatsApp audio messages between the appellant and another person after the appellant’s arrest. Ground 4 complains about the lack of specific direction to the jury as to how to deal with the appellant’s post-offence conduct concerning the WhatsApp audio messages. Ground 5 complains that the judge erred in not (explicitly and specifically) giving the directions on the burden and standard of proof and inferential reasoning in relation to the WhatsApp audio messages, given the prosecution’s suggestion that the appellant was trying to tip someone off.

16.  Mr Mughal submitted that prosecuting counsel, in his closing speech, emphatically suggested that the appellant manipulated the Customs officers into carrying out the controlled delivery when he knew full well that no one would turn up.[25] It was contended that a specific direction in line with a lies direction was called for. The jury should have been warned that they could only rely on the post-offence conduct if they were satisfied beyond a reasonable doubt such conduct was not engaged in for reasons unrelated to the commission of the crime, failing which there was a real risk that the jury would adopt an impermissible line of reasoning to conclude that the appellant had knowledge of the drugs. The appellant relied on the principles in relation to evidence of post-offence conduct expounded in HKSAR v Wang Jinwei[26]; HKSAR v Yim Man Ho[27].

Ground 6 (lies direction)

17.  Ground 6 complains that by repeatedly suggesting in his closing speech that the appellant lied,[28] prosecuting counsel went further than merely undermining the appellant’s credibility. Rather, the prosecution had relied on the appellant’s lies to support their case that the appellant had tipped off the recipient in full knowledge that he was carrying drugs.

18.  Mr Mughal submitted that the lies do not have to be a proven lie before a lies direction is seen as appropriate, if there was a chance of the jury being led in to an impermissible line of reasoning equating lies with guilt. A lies direction should have been given even when no party asked for one at trial: Yuen Kwai Choi v HKSAR[29].

Respondent’s submissions

Reply to Grounds 4 and 5

19.  Mr Cheng, for the respondent, accepted that the causal link between the post-offence tip-off (via the WhatsApp voice messages) and the subsequent unsuccessful controlled delivery, if accepted by the jury, might suggest that the appellant had knowledge of the drugs and, therefore, had culpably tipped off his accomplice. However, it was submitted that this was only one piece of evidence amongst others for the jury to draw an inference of knowledge. Unlike lies or flight, no special direction or warning was required apart from the customary directions on inferential reasoning based on circumstantial evidence.[30] The judge’s general direction[31] on inferential reasoning was sufficient to prevent the jury from finding guilt by way of an impermissible line of reasoning[32].

Reply to Ground 6 (lies direction)

20.  Mr Cheng identified five aspects of the appellant’s evidence where prosecuting counsel used blunt language[33], namely:

(1)  it was inconceivable that he did not know to whom the drugs were to be delivered as he could have called his contact to check;

(2)  it was inconceivable that he had presented the drugs for X-ray check at Customs in Shenzhen without being discovered;

(3)  that the person named “China” in the WhatsApp messages was Naeem came only from his evidence;

(4)  the WhatsApp messages were manufactured to strengthen his claim of no knowledge of the drug; and

(5)  the controlled delivery of the drugs was only a ploy after he had tipped off his accomplice.

21.  The respondent submitted that the first three matters concerned collateral issues that went to the general credibility of the appellant rather than the core issue of whether he had knowledge of the drugs, and by themselves did not call for a lies direction: HKSAR v Lau Tak Mong[34].

22.  Whilst the last two matters may arguably have gone to the appellant’s knowledge of the drugs, they were not proven lies. They were matters for the jury to decide whether to accept the culpable contention of the prosecution or the innocent explanation of the appellant. Thus, a lies direction was not necessary: Yuen Kwai Choi v HKSAR[35]and HKSAR v Okafor Joe K Kingsley[36].

Discussion

23.  We will deal with Grounds 4 and 5 together. The post-offence conduct relates to the WhatsApp messages sent by the appellant. Yeung VP, in the case of Wang Jinwei gave the following examples of a defendant’s post-offence conduct capable of constituting admissible evidence of his guilt on the basis that they showed his awareness of his commission of the offence:

“48. Examples of a defendant’s post-offence conduct capable of constituting evidence of his guilt include:

(1) confessions made by a defendant. …

(2) deliberate lies by a defendant to conceal his crime… ;

(3) a defendant choosing to flee the crime scene in order to evade culpability; and

(4) deliberate modifications to the appearance by a defendant to avoid being recognised as the offender…”

24.  In the present case there was no issue as to the admissibility of the WhatsApp messages. The appellant did not dispute that such messages were sent. On the one hand, they were relied on by the prosecution as a tip-off rendering the later controlled delivery futile, to show the appellant’s knowledge of the drugs. On the other hand, the appellant gave evidence explaining to whom and why these messages were sent. These messages were relied on by the defence as genuine messages showing the appellant’s lack of knowledge/innocence.

25.  The impugned direction was this:[37]

“While the defendant was in the custody of the Customs and Excise, he somehow used his mobile telephone to communicate with a person whom the defendant described as Ahmed Naeem by means of WhatsApp audio messages in Urdu. Mr Wright submits to you that the defendant made use of the messages to tip off Naeem so that Naeem would know he had been arrested. Mr Whitehouse, on the other hand, says that the messages show that the defendant is innocent. You have a copy of the transcript of the messages with English translation. How to interpret the messages is a matter for you, but it is a piece of evidence you should consider…”

26.  Mr Mughal relied on the case of Yim Man Ho and contended that a “two-pronged direction” suggested by Pang JA with the following contents should have been given:

“41. …The jury has to be sure that the defendant carried out the relevant act, and that the act was not carried out for reasons unrelated to the commission of crime, before the jury can regard the act as evidence in support of the allegation made by the prosecution.

…

44. …Apart from having to decide the truthfulness of Wong’s claim, the jury had to consider if the applicant might have offered Wong money out of fear of the latter framing him, the sort of reason which had nothing to do with the commission of crime. No matter how obvious the Trial Judge might have thought the answers to the two questions above were, he still had a duty to remind the jury but failed to do so.”

27.  The facts in Yim Man Ho were unique. The post-offence conduct related to an allegation by Wong, one of the co-conspirators, that the appellant had instigated a number of “chits” whilst they were in detention in an attempt to influence his testimony. In one of the chits (Exhibit D15), the appellant asked Wong to name his terms.

28.  The Court of Appeal was of the view that the alleged offer of hush money and the significance of the appellant being passive and not enquiring about or rebutting Wong’s allegation was itself evidence which had probative value and was admissible, as it would lead to the reasoning that had the appellant not trafficked in dangerous drugs, he would not have offered money to Wong not to testify against him.

29.  However, the circumstances found by the Court of Appeal to warrant a two-pronged direction were that although Wong’s evidence was self-contradictory and he eventually admitted that it was he who instigated the chits but prevaricated as to how and what he had been trying to achieve with those chits, his last answer was that he wrote the first chit to follow up on the appellant’s offer of hush money made to him whilst they were both in detention at the airport.

30.  In Wildy[38], White J, in a dissenting judgment, stated the following, which in our view is a principle of general application:

“109. …The necessity for the jury to exclude innocent explanations as the reason for the lie is at the heart of an Edwards direction. However, this requirement does not involve the criminal standard of proof. …

110. The proposition that an Edwards-type direction is required in some cases in which the prosecution relies upon a form of post-offence conduct (lies) does not mean that it will be required in all such cases. Much will depend upon the nature of the post-offence conduct relied upon, the precise use which the prosecution wishes the jury to make of the evidence (in particular, whether the jury should regard it as an implied admission of guilt), the significance of the evidence in relation to the issues in the trial, whether the accused has given evidence in the trial, and on the possibility that, without such a direction, the jury may fail to take account of alternative explanations for the accused’s conduct and move too quickly to a conclusion of guilt. …”

31.  In deciding whether the special directions were necessary to avoid a substantial miscarriage of justice, we need to examine how the jury were invited to use the evidence of post-offence conduct and whether there was a risk that the jury would use the evidence to conclude that the accused has demonstrated a consciousness of guilt. In the present case, the prosecution never suggested that the post-offence conduct would stand on its own as an implied admission of guilt, nor was it suggested that WhatsApp messages were sent by the appellant as a conscious realization of his guilt so as to bolster the prosecution evidence. Mr Cheng submitted that this piece of evidence was admitted as part of a “continuing association and attachment to the joint criminal enterprise”[39]. It was never the prosecution stance that this piece of evidence was an indispensable link in the chain of reasoning on which proof of guilt depended.[40]

32.  The respondent contended that the messages were just evidence amongst other evidence for the jury to draw an inference as to the appellant’s knowledge. Their probative strength would ultimately depend upon the combined force of all the circumstances of which they formed part. Amongst the abundance of other circumstantial evidence were the quantity and value of the drugs; this was the second trip; he gave contradictory evidence as to whether the HK$6,000 reward he mentioned was for that occasion or for 3 occasions; and the failure of the appellant to mention anything to Customs officers about Naeem, who was the person the appellant was supposed to contact for the delivery of the packets, including the fact that he had had recent contact with him whilst in custody via WhatsApp. It does not follow that any special direction or warning was required about the use to be made of this evidence, or otherwise singling this evidence out from other circumstantial evidence in the case: R v Adamson[41].

33.  What the present case entails is a competing interpretation of the contents of the WhatsApp messages. The only controversial aspect was the ultimate reason or purpose of the post-offence conduct.[42] It was open to the jury, in the light of the evidence as a whole, to characterize this evidence of post-offence conduct in the manner contended for by the prosecution; or in the manner as contended by the defence. In R v Wildy, Vanstone J, in finding the post-offence conduct went to prove no more than another fact in issue, said:

“28. …This case only raises the issue of evaluation of evidence. …the requirement that trial judges give juries warnings in specific terms about the evaluation of certain witnesses or evidence of a particular type is generally that the law regards the experience of judges as apprising them of particular dangers inherent in evidence of certain witnesses, or evidence of a particular type; dangers of which jurors are, or may be, ignorant. …”

34.  The significant consideration is whether there was any danger of the jury placing too much reliance on the evidence of post-offence conduct when it did not fall within one of the established categories calling for a full warning. Vanstone J went on to say:

“32. This was not a case where the accused was silent about his motives for the loan. On the contrary, he gave quite detailed evidence going to his motivation. … In my opinion it would have been inappropriate and quite damaging to the appellant had the judge canvassed with the jury a situation where the jury might reject that explanation and then go on to consider other possible innocent explanations, such as panic or the wish to avert an unjust accusation.”

35.  Pang JA, in Yim Man Ho, made it plain that whether a special direction in relation to post-offence conduct is necessary depends on the circumstances of the individual case:

“42. Directions on “flight”, “lies”, and “concealment” are typical directions of this kind. Having said that, it does not mean that the judge is only required to give directions in respect of the several established scenarios. Quite on the contrary, the judge does not necessarily have to give directions to the jury for any remotely comparable situations. It depends on the circumstances of each individual case. After all, the aim of this kind of direction is to remind the jury to be cautious about looking at matters superficially.”

36.  It should be remembered that the appellant in Yim Man Ho did not give evidence. From the evidence there could be available other innocent reasons unconnected with the commission of crime for the offering of the hush money, such as the appellant being afraid of Wong framing him. In our case, the appellant had proffered an innocent reason in his testimony and Mr Mughal fairly conceded that there was no other innocent explanation for such conduct apart from what the appellant had proffered.

37.  The trial judge stressed in his summing-up that the sole issue in this case was whether the appellant had the requisite knowledge.[43] The jury were required to make a finding on knowledge before they could be satisfied of the appellant’s guilt beyond a reasonable doubt. A direction on the standard of proof was given:

“…you can only convict the defendant if you are sure he is guilty. If you are not sure or if you are in doubt, you must acquit the defendant. You must not equate suspicion or belief as guilt. So, at the end of the day, if you are suspicious or believe that the defendant might be guilty, then you are not in a position to convict. Even if you think that the defendant is probably guilty you still are not in a position to convict. You must be sure he is guilty before you can convict him of the charge.”[44]

38.  Further, in relation to the question of knowledge, and in fact immediately after the impugned direction, the trial judge directed the jury:

“You will remember the defendant told the customs officers, under caution, and gives evidence in court that although he brought the seven packets from Shenzhen to Hong Kong, he did not know they contained dangerous drug. He in fact did not know what was contained in the seven packets. If you find that what the defendant says is true or may be true, you must acquit him of the charge.”[45] (our emphasis)

39.  In relation to the drawing of inferences, the trial judge gave these directions:

“…So if from a set of facts which you find proven there is a reasonable inference to be drawn against the defendant, but at the same time there is also a reasonable inference to be drawn in his favour, then you must not draw the inference adverse to or against the defendant. You are only entitled to draw inference if the inference is the only reasonable inference to be drawn. …”[46]

40.  It is our view that all these usual directions on the standard of proof and inferential reasoning given by the trial judge sufficiently brought home the message to the jury. Any further special direction as suggested by the appellant would have been both confusing and unnecessary, and might even have been damaging to the appellant. Grounds 4 and 5 accordingly failed.

Ground 6

41.  Mr Mughal contended that since the issue of credibility lay at the heart of this case, the use of robust and colourful language by prosecuting counsel in his closing speech might have led the jury into an impermissible line of reasoning of treating the lies as supportive of the prosecution case. He relied on the case of Yuen Kwai Choi v HKSAR, in particular, the following passage:

“31. …There may be many reasons for the jury not to rely on the evidence of a witness. … There is, however, a natural tendency that if the jury consider that a witness is not telling the truth on one aspect of his evidence, they may not believe him in respect of other aspects. This tendency has a much greater impact on the criminal process when it is the accused who has testified in the witness box. If the jury consider that the accused is not telling the truth on one aspect of his case, there is a tendency that they may infer that he has lied because he is guilty of the charge before the court. This “impermissible process of reasoning”, though sometimes natural enough for a layman, is to be avoided if the accused is to have a fair trial.”

42.  Hence, Mr Mughal submitted that although the evidence on which prosecuting counsel suggested the appellant was lying concerned mainly collateral issues, disbelieving the appellant on one aspect might have had a rippling effect tarnishing the whole of the defence case.

43.  Chan PJ, in Yuen Kwai Choi, stated the criteria set out by the Lord Chief Justice in R v Lucas[47] which must be met before a lie is permitted to be used to establish or assist the prosecution’s case or to strengthen an inference of guilt against a defendant: it must be a deliberate lie, relating to a material issue in the case; there is no innocent explanation for the lie and it is a lie which is either admitted or proved by independent evidence[48].

44.  Chan PJ went on to say:

“37. In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. … In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient. … In these situations, there is no danger of improper use by the jury of any lie told by the accused and there is no risk of miscarriage of justice…”[49]

45.  We agree with the respondent that the first three aspects only related to collateral issues, and the last two were not proven lies. It remained for the jury to assess the two diametrically different contentions by the prosecution and defence. At no time did the prosecution rely on them to bolster the prosecution case, and indeed this was conceded by Mr Mughal. There was simply no risk of any impermissible line of reasoning by the jury to infer guilt from a lie/lies.

46.  As McWalters JA said in HKSAR v Lau Tak Mong[50]:

“53. …There is, of course, a world of difference between characterising a defendant’s testimony as false, deliberately fabricated, untruthful and a downright lie and asking the jury to find that it is a lie and having so found to use that lie as supportive of the prosecution case.

54. The real question is not how the prosecutor characterises a defendant’s evidence but what he invites the jury to do should they agree with him that the defendant’s evidence is untruthful. In most cases the prosecutor does no more than ask the jury, as a consequence of making a finding adverse to a defendant, to disbelieve the defendant, put his evidence to one side and focus on the evidence adduced in the prosecution case. The law is clear that in this situation no lies direction will usually be needed.”

47.  In the present case, prosecuting counsel had reminded the jury that the appellant did not have to prove anything, and even if they were to reject his evidence, the burden remained on the prosecution to prove his guilt[51]:

“…So here we are, we’re left with if you don’t accept his evidence … where you think it probably is true, really true, but then fall back on the prosecution evidence and say, well, all right, that’s what he says, he doesn’t have anything to prove, then it still falls back on our shoulders. It’s quite a heavy burden, it’s a high standard. We’ve got to prove his guilt. It’s our burden. That’s the system, and we have to prove his guilt so you’re sure.”

48.  The judge had on three occasions reminded the jury that they were free to accept or reject counsel’s views, and it was for them alone to decide the facts of the case.[52] The judge emphasized that the fact the appellant did not have a criminal record meant he had less propensity to commit the crime.[53] The judge also directed the jury that they might believe all or part of the evidence given by a witness (which included the appellant who had given evidence)[54]. He also directed that if the jury were to disbelieve the evidence of the appellant, they had to go on and consider whether the prosecution had proved the guilt of the appellant beyond a reasonable doubt:

“Even if you do not accept the evidence of the defendant, you cannot convict him just because of that. You still have to consider the whole of the evidence to decide whether the prosecution have proved the guilt of the defendant beyond a reasonable doubt. …”[55] (our emphasis)

49.  With these directions, our view is that there was simply no risk that the jury were led to engage in any impermissible line of reasoning equating lies with guilt. Ground 6 also failed.

50.  The appeal was dismissed accordingly. We would, however, wish to commend the trial judge for a summing-up which was simple, concise and clear.

Mr Raymond Cheng, SADPP of the Department of Justice, for the Respondent

Mr Hanif Mughal, instructed Boase Cohen & Collins, assigned by Director of Legal Aid, for the Appellant