HKSAR v. Ranjit Singh

HCMA 538/2017

[2018] HKCFI 57

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 538 OF 2017

(ON APPEAL FROM FLCC 2787/2017)

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J U D G M E N T

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1.The appellant was charged with one count of possession of an identity card relating to another person, he was represented by a duty lawyer at trial. After trial, the learned magistrate convicted him of the charge and he has now appealed against his conviction.

2.The trial was not terribly complicated.  The Prosecution only called two witnesses.  The first prosecution witness (“PW1”) was PC 14971 who was patrolling in the vicinity together with his other colleague.  He gave an account that he intercepted the appellant and asked him to produce his identity document.  The appellant appeared nervous and moved forward and he was told by the police to stop moving.  The appellant then used his hand to cover his right rear trousers’ pocket.  PW1 then said he paid attention to what was on the right rear trousers’ pocket and he saw the appellant take out his Form 8 paper from that pocket and also witnessed that a cardboard like object dropped from the saying pocket.  When PW1 looked at the ground, he found that it was a Hong Kong Identity Card.  So the sergeant 1975 was called at PW2, then picked up the card and questioned the appellant who said sorry, sorry.  The police officers checked the particulars in the identity card against the Form 8 produced by the appellant and discovered that they contained different information.  PW2 was with PW1 when the appellant was stopped, however, he very honestly told the court that he did not witness the identity card that had dropped from the appellant’s trousers’ pocket.

3.The learned magistrate having heard the evidence ruled that there was a case to answer.  The appellant elected not to give evidence nor called any defence witnesses.

4.The learned magistrate then heard the submissions of Defence counsel and subsequently made an assessment of the evidence.  The learned magistrate had already fully described his assessment of the evidence of the prosecution witnesses in his Statements of Findings, he was fully aware that the appellant had a clear record and he warned himself that the clear record actually supported the appellant’s propensity and credibility and that he was less likely to have committed the offence although the appellant did not give evidence.

5.The learned magistrate then considered the evidence of the prosecution witnesses and their demeanor during the cross‑examination and at the end of the day, after analyzing their evidence, admitted that their evidence as being the truth.  He said that the evidence, as described by the prosecution witnesses, was reliable although of course the learned magistrate recognized there was a language barrier between the appellant and the police officers.

6.The learned magistrate also specifically dealt with the defence allegations of inconsistency as to whether the Form 8 when handed over to PW1 was in a folded‑state or unfolded‑state but he decided quite properly that it could have been an honest mistake and that did not interfere with his finding as to the truthfulness of the prosecution witnesses.  At the end of the day, the learned magistrate convicted the appellant.

7.The appellant, representing himself in the appeal, had put forward several grounds of appeal.  At first he alleged that the evidence showed that the identity card was about a hundred feet away from him.  However, at page 33 of the Appeal Bundle, at Line K in the submission of the Defence counsel, he did mention that the ID card according to PW1 had fallen about a metre away and according to PW2 was one and a half metres away from the appellant’s leg, so it was not really as the appellant said a hundred feet away. However, the appellant further submitted that if he was taking out his Form 8, how could he have thrown away the identity card.  And he questioned why the CCTV camera tape was not produced and there was no evidence that his fingerprints were found on the identity card.

8.As I have explained to the appellant, this court is an appeal against conviction, only examines the evidence which was before the learned magistrate, and if as the learned magistrate had made a proper assessment of the evidence before him and whether the evidence before him was sufficient to ground the conviction.

9.In this case, as Mr Daryanani pointed out that the learned magistrate said this is a “one‑on‑one” case in that PW1 alleged that the identity card was taken out of the appellant’s back pocket together with the Form 8 and the appellant asserted in cross‑examination that it was not his.  The learned magistrate was fully aware of the situation and after having properly assessed the evidence and concluded that PW1 was an honest and reliable witness and therefore convicted the appellant.  I cannot see any grounds for interfering with the learned magistrate’s conviction, so the appeal against conviction is dismissed.

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

The appellant appeared in person