HKSAR v. Hossain Billal

HCMA 466/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 466 OF 2016

(ON APPEAL FROM FLCC NO 2945 OF 2016)

______________

______________

______________

J U D G M E N T

______________

1.The appellant was charged with one count of “Possession of an identity Card”, contrary to s.7A(1A) of the Registration of Persons Ordinance, Cap.177. He was convicted after trial by a deputy magistrate (“the Magistrate”) and was sentenced to 18 months’ imprisonment.

2.The appellant now appeals against both the conviction and sentence.

Prosecution Case

3.The appellant was represented by a duty lawyer at the trial. The prosecution only called the arresting officer, PC 5486, as prosecution witness (PW1).

4.On 14 July 2016, PW1 intercepted the appellant outside Tai Po Police Station.  The appellant produced a recognizance form of the Immigration Department to the officer.  Upon searching, a Hong Kong Identity Card (“the ID Card”) in the name of RAI Sandeep (“RAI”) was found in the appellant’s right front trousers pocket.  As the information on the ID Card did not match with those of the appellant, PW1 arrested the appellant.

5.PW1 found the appellant fidgeting his mobile phone.  Having conducted an examination on the said mobile phone, PW1 found a picture of the ID Card saved in the phone.  It is not in dispute that the picture was taken on 22 June 2016.

6.According to the witness statement of Senior Immigration Officer Li Pui Tak, which was admitted pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221, RAI reported on 5 July 2016 that he had lost the ID Card on 19 June 2016.

Defence Case

7.The appellant elected to give evidence and called his friend, Salful Islam, as defence witness (DW2).

8.The appellant is a torture claim claimant who has been in Hong Kong for 4 years.  He said that he met RAI at a game centre 2 months prior to the present offence.  Then they spent time together almost every day.

9.On 22June 2016, the appellant saw RAI dropped his ID Card outside the game centre.  The appellant took a picture of the card and sent the same to his wife as she had always wanted to see how a Hong Kong ID Card looked like.  The appellant returned the ID Card to RAI after taking the photo.

10.On 14 July 2016 at about 0900 hours, when the appellant was walking with his friends, including DW2, towards the game centre, he found the ID Card lying on the road.  He recognized that it belonged to RAI, so he kept it in order to return it to RAI.

11.DW2 confirmed the appellant’s version.  After the appellant had decided to keep the ID Card for returning to RAI, the appellant suggested to meet somebody at Tai Po.  As a result, they walked from Sham Shui Po to Tai Po.

The Magistrate’s Reasons for Verdict and Sentence

12.The Magistrate noted that the issue of the case was whether the appellant had reasonable excuse for his possession of the ID Card.

13.The Magistrate did not find any inherent improbability or material inconsistency in PW1’s evidence and accepted his evidence.

14.The Magistrate went on to consider whether there was any reasonable excuse for the possession of the ID Card but took the view that the defence case was unreasonable. The Magistrate found it unreasonable that after the appellant had found the ID Card, he made no attempt to locate RAI but went to Tai Po to meet somebody else.  Furthermore, although the appellant was so close with RAI that they spent around 5 to 10 hours together almost every day, RAI had never mentioned to the appellant that he had lost his ID Card.

15.The Magistrate found the explanation about taking the picture of the ID Card on 22 June 2016 wholly incredible.  The Magistrate noted that the appellant had already been in Hong Kong for 4 years, yet he had never asked any friends for taking a picture of their Hong Kong ID Cards for the purpose of sending the same to his wife.  Rather, he chose to secretly take a picture on 22 June 2016 when he picked up the ID Card without asking for the consent of RAI.

16.The Magistrate also noted the discrepancy between the evidence of the appellant and that of DW2. While the appellant claimed that the ID Card lied on the road 5 to 7 feet from the game centre, DW2 however said that it was found near Sham Shui Po MTR B2 exit which was about 15 meters away from the game centre.

17.Having found the appellant’s version inherently improbable and noticed the discrepancies in evidence between the appellant and his witness, the Magistrate rejected the evidence of the appellant and DW2.

18.The Magistrate did not find that the appellant had any reasonable excuse for possessing the ID Card.  She therefore convicted the appellant.

19.As for the sentence, the Magistrate was told that the appellant is a 35 years old torture claimant with a clear record.  The Magistrate applied the guideline in HKSAR v Li Chang Li (2005) 1 HKLRD 865 in which the Court of Appeal held that a term 12 months’ imprisonment is called for upon a guilty plea for possession of an ID Card of another.

20.The Magistrate adopted 18 months’ imprisonment as the starting point because the appellant was convicted after trial. As there was no mitigating factor, the Magistrate sentenced the appellant to 18 months’ imprisonment.

Grounds of Appeal of the Appellant

21.In the appellant’s Notice of Appeal against Conviction, he did not set out any concrete grounds of appeal against conviction.  In his letter to the Court received on 27 September 2016, he said he handed to PC 5486 the ID card which he picked up that very morning.  He asked for a court order for the police to produce the CCTV footage of Tai Po police station surveillance camera which would show, he said, how he was intercepted.  At the appeal hearing, the appellant reiterated basically what he said at the trial.  In the appellant’s Notice of Appeal Against Sentence, other than claiming the sentence was too severe, the appellant did not provide any solid grounds of appeal.  At the hearing of the appeal, he asked the court to sentence him as kind as possible.

Respondent’s Reply

22.The respondent submitted that the whole case turns on the credibility of PW1 and the version given by the appellant and DW2. The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility unless it is satisfied that the finding is plainly wrong.

23.With her detailed reasons as to why the defence version is not credible, the Magistrate’s findings are sound and logical.

24.The respondent also made a further point as to the inherent improbability of the defence case.  In his evidence, the appellant was suggesting that there were two incidents of RAI’s ID Card went missing.  On both occasions, the ID Card was found on the street, ie a public place where everybody could have access to.  On both occasions, the appellant just happened to be around to pick up the ID Card. The respondent submitted that the probability of such a coincidence was inherently improbable and it was correct for the Magistrate to reject such a version.

25.As regards the request for CCTV footage, the representative of the respondent told the court that there was no CCTV footage seized in this case.  There was no CCTV coverage outside the report room of Tai Po police station, ie the location of interception of the appellant. Application for disclosure of the CCTV footage was made and subsequently withdrawn at the trial before the Magistrate.

26.As the appellant acted in person, the respondent fairly drew to the Court’s attention a point which might be favourable to the appellant. At paragraph 19 of the Statement of Finding, the Magistrate reminded herself of the appellant’s propensity to commit crime because of his clear record.  However, the Magistrate did not expressly state that she had considered the credibility limb of the Vye direction.

27.Nevertheless, the respondent submitted that in Tang Siu Man v HKSAR (No.2) (1997-1998) 1 HKCFAR 107, the Court of Final Appeal concluded that there was no need in Hong Kong to impose the Vye regime on trial judges.  The regime had not been demonstrated to work well in other jurisdictions.

28.Litton PJ stated the shortcoming of the Vye directions at 130E:-

“Further, the ‘credibility’ direction must be given according to Vye even if the defendant did not testify, so long as the prosecution has put before the jury a ‘mixed’ statement and the defendant is, through counsel, relying on the exculpatory portions of it. The probative value of the statement might be virtually nil: it might be more consistent with common sense, and perhaps more favourable to the defendant, for the judge to focus on, and emphasise, the ‘propensity’ limb, ignoring the ‘credibility’ limb altogether. The Vye principles takes away from the judge this flexibility.”

29.It was held that at the end of the day, the appellate court will determine whether the summing-up is fair and balanced. That is the ultimate test^[1].

30.It was submitted that the inherent improbability of the defence case as well as the discrepancy between the evidence of the appellant and DW2 provided solid basis for rejecting the appellant’s version.  

31.With regard to the sentence, the Magistrate correctly followed the leading case of Li Chang Li.  The sentence was not too severe.

The Court’s Consideration and Opinion

32.There is no dispute that the appellant was in possession of the ID Card in question.  The issue is whether he has reasonable excuse or lawful authority for possessing it.  The Magistrate had carefully evaluated the evidence of PW1 and noted that PW1 did not make a record of some minor details of the interception.  However the Magistrate took the view that it did not affect the credibility and reliability of PW1. There is no basis for challenging the finding of the Magistrate who has heard and seen the witness giving his evidence.

33.The Magistrate had also carefully analysed the evidence of the appellant and his witness before she came to the conclusion that their evidence was inherently improbable and incredible.

34.There was inconsistency of evidence between the appellant and his witness as to the exact location where the ID Card was found.

35.The appellant had met RAI almost every day for the last 2 months.  It is unlikely that RAI did not tell the appellant about the loss of his ID Card.  It is improbable that the appellant did not immediately inform RAI who could be easily found in the game centre when the appellant picked up RAI’s ID Card on the street on the day the appellant was arrested. The ID Card was reported lost on 5 July 2016, it is again improbable that it could be found on the street near an MTR station on 14 July 2016.  The appellant’s mobile phone contained a picture of the ID Card without an acceptable explanation. 

36.On all these evidence, the Magistrate, having seen and heard the evidence of the appellant and his witness, was entirely entitled to come to the conclusion that the appellant’s version is inherently improbable and reject the evidence of the appellant and his witness.

37.There is no substance in the appellant’s assertion at the appeal that he handed the ID Card to PW1.  The finding of the ID Card from his trousers pocket was not contested at the trial by his counsel. In any case, it is neither here nor there and would not assist the defence.

38.The issue of disclosure of CCTV footage had been considered and withdrawn at the trial.

39.While the Magistrate omitted to spell out the Vye direction in full, I find that the Magistrate must be aware of both the propensity limb and the credibility limb of the direction.  The omission would not have affected the conviction.

40.In my judgment, given the absence of explanation acceptable by the court, the Magistrate’s finding that the appellant did not have reasonable excuse cannot be faulted.  The appellant did not have lawful authority either.

41.The conviction is neither unsafe nor unsatisfactory.

42.The Magistrate correctly followed the guideline in Li Chang Li in sentencing the appellant.  I cannot see any reason to justify a departure from the sentencing guideline. The sentence is neither manifestly excessive nor wrong in principle.

The Result

43.There is no merit in both the appeals against conviction and sentence.  Both appeals are therefore dismissed.

Mr Wong Chun Hin Derek, Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant appeared in person