HKSAR v. Roop Singh

HCMA 10/2018

[2018] HKCFI 368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 10 OF 2018

(ON APPEAL FROM KCCC 2450/2017)

------------------------

------------------------

--------------------------------

J U D G M E N T

--------------------------------

1.The appellant was charged with one count of possession of an identity card relating to another person, he pleaded not guilty to the charge and he was represented by counsel instructed by the duty lawyer service. He was convicted after trial and sentenced to 18 months’ imprisonment. After he was convicted and sentenced, he lodged an appeal against his sentence. One month later, he lodged an appeal against conviction out of time.

2.First, dealing with his appeal against conviction out of time.  The appellant gave conflicting versions of how he came to appeal against conviction out of time.  He first told the court that his counsel did tell him at the end of the trial that he could appeal against conviction and sentence, but according to his letter attached to his application to appeal against conviction out of time, he said he only came upon the knowledge that he could appeal against conviction subsequently.  He signed the letter but he claimed in court that he did not understand what was written there.  In view of the fact that the letter was not written or translated into Punjabi, I gave him the benefit of the doubt, so I allow him to appeal against conviction out of time.

3.Now the facts in relation to this charge were that there was a stop and search conducted by a police constable (PW1) and upon a search of the appellant, an identity card in the name of Mr Khan Sohil was found in a notebook which the appellant carried on his person.  That identity card had been reported stolen on 19 December 2016, the appellant was found with that identity card on 16 June 2017.  PW1 who found the appellant with the identity card gave evidence and he was cross‑examined by counsel acting for the appellant.  After that, the appellant elected to give evidence. He said that he is aged 52 and he is illiterate.  He does not read and write English, he can only speak Punjabi.  He came to Hong Kong in 2014 and he filed a non‑refoulement claim in Hong Kong.  He claimed that shortly before his arrest, he found the identity card lying on the ground and he picked it up and put it into his pocket intending to bring the card to the police station.  He said that he told his friend who was called as his defence witness, Mr Lakhwinder Singh (DW1), that he wanted to take the identity card which he had picked up to the police station.  DW1 told him that since they did not speak English, he will introduce another friend, Mr Harginder Singh, who speaks English to go with them.  So after the appellant had finished speaking to DW1, he was then approached by the police who then arrested him.

4.The appellant was cross‑examined and the appellant admitted that when he picked up the identity card, he did not hand the card to the police because he was scared to do so as he could not speak English, so he was waiting for his friend to come.

5.DW1 gave evidence and said that he did speak to the appellant about the finding of the identity card and then he was going to ask his friend, Mr Harginder Singh, to come and go with them to the police station.  DW1 said when he arrived at the location whether the appellant told him he would be, the appellant was no longer at that location as he had been taken away by the police.

6.The learned magistrate when considering the evidence, had reminded herself of the law in this case.  She also correctly reminded herself that the appellant has a clear record in Hong Kong.  The learned magistrate then went on to analyse the evidence and the learned magistrate found that she cannot find that the appellant nor the witness for the Defence were telling the truth.  Basically, the learned magistrate said that if the appellant was going to hand the identity card to the police, then when he saw the police, why did he not hand the card over immediately?  And as for Mr Harginder Singh, who was supposed to come and give assistance, the appellant himself said he knew Mr Harginder Singh, if that was the case, it was not necessary for the Defence’s witness to introduce Mr Harginder Singh to him.  And so, relying on the evidence of the Prosecution, the learned magistrate found that the only irresistible inference in this case was that the appellant was in possession of the identity card without any reasonable excuse or lawfully authority and so convicted the appellant of the charge.

7.The learned magistrate then proceeded to assess the sentence and in mitigation was aware that there was no evidence the appellant had used the identity card and the appellant was suffering from jaundice for sometime.  The learned magistrate then considered the case of HKSAR v Li Chang Li which is HCMA 935/2004 and sentenced the appellant to 18 months’ imprisonment.

8.Now on appeal against conviction, the appellant is unrepresented and the appellant repeated the evidence he gave in the court below, and he said that the evidence was insufficient for him to be convicted of the charge and that the learned magistrate therefore should not have found him guilty.

9.In relation to the sentence, he said that the sentence was too long and asked for a reduction in sentence.  I have read the learned magistrate’s Statement of Findings in relation to the conviction, she is the best person to find the facts as she had observed all the witnesses giving evidence in court.  She had given the reasons for convicting the appellant of the charge and she had also given reasons as to why she did not believe either the appellant or his witnesses.  I cannot find any error in her reasons for conviction in law or in procedure and so there is no reason whatsoever to disturb her conviction in this case.

10.In the relation to the sentence, the learned magistrate was only following the guideline in the case of HKSAR v Li Chang Li and 18 months’ imprisonment is appropriate, so both the appeal against conviction and sentence are dismissed.

Ms Elisa Cheng PP, of the Department of Justice, for the respondent

The appellant appeared in person