HKSAR v. Shams, Ul Qamar

HCMA 628/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 628 OF 2016

(ON APPEAL FROM KCCC 3425/2016)

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BETWEEN

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J U D G M E N T

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1.The Appellant, now a torture claimant, was convicted after trial in the Magistrates’ Court on two charges.  Charge 1 was of dealing with goods to which the Dutiable Commodities Ordinance (Cap 109) applies, contrary to Section 17(1) as read with Section 46(3) of that Ordinance.  It was alleged that on 4 October 2016 at 257 Tai Nan Street in Sham Shui Po, he so dealt with 8,894 sticks of cigarettes. Charge 2 was of establishing business after having landed in Hong Kong unlawfully and remained in Hong Kong without the authority of the Director of Immigration, contrary to Section 38AA of the Immigration Ordinance (Cap 115). The business alleged was that of selling the cigarettes the subject‑matter of Charge 1.  The Appellant was sentenced to a total of 22 months and 2 weeks’ imprisonment.  That total sentence was arrived at by way of concurrent terms of 3 months’ imprisonment on Charge 1 and of 22 months and 2 weeks’ imprisonment on Charge 2. 

2.The Appellant appeals against his conviction and his sentence.  Neither in his Form 101 Notice of Appeal Against Conviction nor in his Form 102 Notice of Appeal Against Sentence have any grounds of appeal been added to the pro forma grounds of appeal printed in those forms.

3.At the trial, a Customs officer gave evidence that when he asked the Appellant in English under caution at the scene of the alleged crimes “What do you do with the cigarettes?”, the Appellant replied in English “I sell a packet of cigarettes for $20 and one carton of cigarettes for $150.”

4.The prosecution produced a notebook post-record in English of that admission and a translation into Urdu of that post-record which translation was written into the notebook.  The Appellant signed the notebook.  He did not give evidence at the trial of the special issue of whether the notebook post-record was admissible in evidence. 

5.It was put by the defence in cross-examination in the trial of the special issue that the Appellant did not make the oral admission and that he had been induced to sign the notebook post-record.  The Magistrate ruled the notebook post-record admissible in evidence. 

6.At the trial of the general issue, the Appellant did give evidence.  He denied that he made any admission, and he said that he was induced to sign the notebook post-record.  He denied the charge, saying that the cigarettes were being sold by a vendor to whom he had given a $50 note, who had no change and who left the stall to get the change.  He said that he was standing there when the Customs officers arrived.  He said that he spoke no English, and could read little Urdu. 

7.The Statement of Findings contains a detailed analysis of the evidence.  The effect of the Magistrate’s conclusion on the reliability of the rival evidence is that he was sure that the truth was as stated by the prosecution witnesses and not as stated by the Appellant. He was satisfied beyond reasonable doubt that the charges were proved beyond reasonable doubt. 

8.There was evidence on which to convict on both charges.  I find no basis on which it can be said that the Magistrate did not make proper use of her advantage of having seen and heard the witnesses in the witness-box.  There was no error in the Magistrate’s approach or her understanding of the law. 

9.The appeal against conviction is dismissed.

10.In passing sentence, the Magistrate considered all the mitigating factors.  This morning, the Appellant informed me that his father is ill in Pakistan, and he wanted to go back to Pakistan to look after him.  I do not find that to be humanitarian ground for me to reduce the sentence, and I find that the overall sentence which the Magistrate has passed cannot be said to be beyond the appropriate range. 

11.The appeal against sentence is also dismissed. 

Ms Jasmine Ching, SPP of the Department of Justice, for the Respondent

The Appellant appeared in person