HKSAR v. Kardeep Singh

HCMA 444/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 444 OF 2017

(ON APPEAL FROM KCCC 762/2017)

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Before: Hon Wilson Chan J in Court

Date of Hearing: 14 November 2017

Date of Judgment: 4 December 2017

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J U D G M E N T

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Introduction

1.The appellant was charged with one charge of “possession of an identity card relating to another person”, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177.

2.The appellant pleaded not guilty. On 6 June 2017, the appellant was found guilty after trial and sentenced to 18 months’ imprisonment.

3.The appellant applied on 21 June 2017 for leave to appeal against conviction out of time (being 1 day out of time).  This was granted on 3 July 2017.

Prosecution Case

4.The prosecution case is that a Mr Jarmanjit Singh was the holder of an identity card.  The date of issue was 5 October 2015.

5.Mr Jarmanjit Singh lost his identity card in March 2016.  He forgot the exact date.  He lost it in Mok Cheung Street in Kowloon City.  He had made a report to the police with reference KC RN 1600 7701.  He had not given his identity card to others.  He did not know the appellant.  The identity card was Exhibit P1 in the trial.

6.On 9 August 2016, at around 16:26 hours, Police Constable 13607 (“PC 13607”) was patrolling with his partner.  He noticed that the appellant was looking nervous.  He asked the appellant for identification proof.  The appellant produced his Form 8 recognizance form.

7.PC 13607 noticed that the appellant was holding a phone case.  It was Exhibit P2 in the trial. 

8.PC 13607 inspected Exhibit P2.  In Exhibit P2, PC 13607 found a Samsung mobile phone.  Upon removing the Samsung mobile phone, he found Exhibit P1.  According to PC 13607, nothing else was found in the phone case or any of the pockets therein. 

9.PC 13607 noticed that: -

(i) The appellant looked different from the photograph in Exhibit P1.

(ii) The particulars in the Form 8 recognizance form were different from the particulars in Exhibit P1.

Therefore, he made enquiries with the appellant. 

10.The appellant claimed he had picked up Exhibit P1. 

11.On 9 August 2016 at 16:28 hours, at To Kwa Wan Road near Sheung Heung Road, PC 13607 arrested the appellant for the offence of possession of an identity card relating to another person. 

Defence Case

12.The appellant has a clear criminal record.

13.Under caution, the appellant explained that he picked up Exhibit P1 outside a McDonald’s restaurant in To Kwa Wan at around 4:15 pm on 9 August 2016, ie the date of offence. 

14.The appellant said that, in fact, the following items were inside Exhibit P2 when he was stopped by PC 13607. They were: -

(i) Exhibit P1 was found in a clear plastic cover;

(ii) The appellant’s Form 8 recognizance form (Exhibit D1);

(iii) The appellant’s Octopus card (Exhibit D2).  However, the appellant said the Octopus card that he was carrying at the material time was seized by PC 13607.  The Octopus card produced is one of a similar design;

(iv) Income Tax Department (India) card (Exhibit D3);

(v) A paper pocket (Exhibit D3A);

(vi) An election card (India) (Exhibit D3B);

(vii) An insurance card issued by a Dubai company (Exhibit D4); and

(viii) International Social Service (“ISS”) document (Exhibit D5).

15.The appellant testified that: -

(i) Exhibit P1 had a clear plastic cover when it was found, so the appellant could not insert it in the slots of Exhibit P2.  He therefore placed it underneath the mobile phone.

(ii) Exhibit D2 and Exhibit D4 were kept in one of the card slots of Exhibit P2.

(iii) Exhibit D3A which was holding Exhibit D3B and Exhibit D3 were kept in the other card slot.

(iv) Exhibit D1 and Exhibit D5 were in fact folded at the material time.  Exhibit D1 was placed on top of Exhibit D5 and they were placed in the left long pocket of Exhibit P2.

16.The appellant went into a McDonald’s restaurant at around 3 pm on 9 August 2017.  When he came outside he found Exhibit P1.

17.The appellant was going back to his home in To Kwa Wan.  On the way, the appellant was intercepted by six or seven policemen.  He showed them his identity document. 

18.The appellant picked up Exhibit P1 because it belonged to an Indian.  He wanted to take it to the police station with his friend’s assistance as he did not have much knowledge on how. 

19.The appellant said he did not learn any English in India.  However, he learned some English from his friends in Hong Kong.

20.The appellant used hand gestures and told PC 13607 with English words like “here” and “down”, to tell him he found it from McDonald’s.

21.The appellant admitted that as a Form 8 recognizance holder, he could not work in Hong Kong.

22.Under cross-examination, the appellant said he does not know any English at all.  The appellant also explained that when he was intercepted, he was hurrying to go to his friend’s home.

Findings of the magistrate

23.The magistrate directed herself in respect of the burden and standard of proof.

24.The magistrate directed herself on the effect of the appellant’s clear record both as to the appellant’s propensity and credibility. 

25.The magistrate directed herself that if the appellant’s version is or may be true she must acquit the appellant.

26.The magistrate found PC 13607 to be an honest and reliable witness, and accepted his evidence.

27.The magistrate said as the appellant knew how to say some English words like “here” and “down”, he would be able to say the word like “McDonald’s”.

28.The magistrate observed that: -

(i) The appellant said in examination-in-chief that he needed the help of his friend to bring the identity card to the police, yet no detailed information has been given regarding this friend.

(ii) In examination-in-chief, the appellant said he was going back home after eating at the McDonald’s.

(iii) However, under cross-examination, the appellant said he was hurrying to go to his friend’s home.

(iv) Even though the appellant has been living in the area for some time, he claimed he did not know where the police station was.

29.The magistrate noticed that the holder of Exhibit P1 was of the same nationality as the appellant, an Indian. She also noticed that the appellant’s surname and the surname of the holder of Exhibit P1 were the same.  The magistrate did not consider that the appellant could easily pick up Exhibit P1 on an open street, by chance, as alleged.

30.The magistrate noted the reason the appellant said he put Exhibit P1 underneath the mobile phone in Exhibit P2, namely: the space of the card slots and long pockets in Exhibit P2 were taken up by some of the defence exhibits mentioned by the appellant, and Exhibit P1 had a plastic cover.  However, the magistrate noticed that some of the defence exhibits were of no immediate functional use to the appellant in Hong Kong.

31.The magistrate further noted that: -

(i) the cards which the appellant alleged were in Exhibit P2 and which were produced as defence exhibits were not put to PC 13607 under cross-examination;

(ii) the appellant’s Octopus card which was allegedly seized by PC 13607 at the time of arrest, was not produced in court, neither was it put to PC 13607 that he took the appellant’s Octopus card; and

(iii) the appellant alleged that Exhibit P1 had a plastic cover so he had to put it underneath the mobile phone in Exhibit P2.  However, no plastic cover was produced in court and the fact that Exhibit P1 had a plastic cover at the time of seizure was not put to PC 13607.

32.Based upon PC 13607’s version, the appellant could have placed Exhibit P1 in the card slots or long pocket of Exhibit P2, which would have exposed Exhibit P1 when Exhibit P2 was opened. There was no need to keep Exhibit P1 so that it was hidden underneath the mobile phone.  The magistrate drew the irresistible inference that this was done to conceal Exhibit P1 and he did not want anyone to know of its existence.

33.It was put to the appellant that by putting the cards and documents in Exhibit P2, it would make it bulky.  The appellant replied that the mobile phone was very light.  The magistrate found this evasive.

34.The magistrate rejected the appellant’s evidence and also the explanation in his records of interview. 

35.The magistrate said even though she rejected the appellant’s evidence, the prosecution had to prove its case beyond reasonable doubt.  She made the following findings of fact in addition to the agreed facts and convicted the appellant as charged:

(i) The prosecution has proved beyond reasonable doubt that, at the material time, the appellant was in possession of Exhibit P1.

(ii) The appellant is a Form 8 recognizance holder, so it was obvious for others to know that Exhibit P1 did not belong to him.  The appellant therefore had to hide it underneath the mobile phone.  The appellant placed Exhibit P1 underneath the phone cohered to Exhibit P2.

(iii)   The prosecution has proved beyond reasonable doubt that there was no reasonable excuse for the appellant to possess Exhibit P1.

Grounds of Appeal

36.The appellant relies on the general grounds of appeal in his Form 101 dated 3 July 2017.

Discussion

37.The major issue in the present case is the credibility and reliability of the witnesses.

38.An appeal under section 113 of the Magistrates Ordinance, Cap 227, is conducted by way of rehearing on the evidence before the trial court.  Where factual findings are concerned, it must be recognized that the magistrate had the advantage of receiving the evidence first-hand, while the judge on appeal can only rely on the Statement of Findings and transcript of the evidence, if any.  The credibility and reliability of any particular witness is within the assessment of the magistrate.  It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or where the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence, that the conviction will be rendered unsafe and/or unsatisfactory.

39.In other words, the appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong [see: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, paragraph 65].

40.In the present case, the magistrate has carefully analyzed the evidence of the witnesses.  She has given detailed reasons as to why the evidence of PC 13607 was preferred but not the appellant’s.  In my view, the findings of the magistrate are sound and there is nothing illogical or inherently improbable in her findings.  In the circumstances, the conviction of the appellant should be upheld.

41.In fairness to the appellant, counsel for the respondent has raised several matters which the magistrate possibly should have considered when assessing the credibility of the appellant’s version of events.  However, these points were not raised by the appellant at trial, who was represented by experienced counsel.  These are matters of mixed law and facts.  I do not consider that these points can properly be dealt with on appeal, without the evidential basis thereof having been suitably established at trial.

Conclusion

42.For the reasons stated above, the appellant’s appeal against his conviction is dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

The appellant appeared in person