HKSAR v. Ali Zulifqar

HCMA 309/2018

[2021] HKCFI 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 309 OF 2018

(ON APPEAL FROM ESCC 1641/2016)

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Before: Deputy High Court Judge Tam in Court

Date of Hearing:  15 November 2019

Date of Judgment: 28 January 2021

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J U D G M E N T

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1.The appellant was convicted before a magistrate of one charge of threats to destroy or damage property, contrary to section 61(a) of the Crimes Ordinance, Cap 200.  The particulars of offence are that the appellant on 19 May 2016, in Wan Chai, Hong Kong, without lawful excuse, threatened “X” that he would destroy or damage the property by setting fire and planting a bomb inside the Mongkok MTR Station in Hong Kong, intending that the said “X” would fear that the said threat would be carried out.

2.The appellant appeals against conviction.

3.At trial and here, the appellant was unrepresented and acted in person.

4.On Form 101, the appellant has not put in any grounds of appeal.

Procedural history

5.On his first appearance before me on 16 August 2019[1], upon being pressed by me for grounds of appeal, the appellant said that the case was a fabrication against him based on a first information report (a witness statement) that was lodged against him only one month after he was arrested. The appellant said that the statement was tampered with 3 times ie the material in the statement has been changed.

6.In passing, the appellant said that in the case, a high-profile person has been saved and that person (later understood to be Mr Wahab, a retired magistrate) has fled Hong Kong.

7.The appellant also said the trial magistrate had said that there was no case against him, which I found amazing given the verdict.  He said that once he has obtained the transcript he could show those words to me.

8.Regarding the person Mr X, ie the main prosecution witness, the appellant said that the police just got a person from the street and took a statement from him as the basis to prosecute against the appellant.

9.As I later came to understand, it is this Mr X’s first statement purportedly dated 24 May 2016 that the appellant said was actually taken in June 2016 (and which was allegedly tampered with 3 times), one month after his arrest on 26 May 2016.  Six pages (copy) of that statement was exhibited by the appellant as Exhibits D17-D22.  Apparently, the appellant based his belief on the fact that during his first video recorded interview (“VRI”) taken on 27 May 2016 (in fact both of his VRIs were taken on the same day), nothing was asked of him about Mr X, who according to the prosecution case, had already approached the police as early as 24 May 2016.

10.Because of what the appellant has said, and with a view to allowing the appellant to crystallize his grounds of appeal, I allowed an adjournment for obtaining the full transcript of trial but I also imposed a strict timetable for him to file perfected grounds of appeal and written submissions in support.  The appellant has promised to write out the documents in English with help from a friend.

11.The proceedings were then adjourned to a date to be fixed which became 15 November 2019 which was also listed before me.

12.To my surprise, the appellant appeared on the return day without any perfected grounds of appeal or written submissions although the full transcript was served on him at the end of September 2019 and the due date for filing documents to court had long passed.

13.The appellant tried to excuse himself by saying that his was a complicated case and that he had applied for legal aid again.

14.This time, the appellant asked me to order CAPO to conduct a forensic test on the first witness statement of Mr X.  The appellant said that he had previously asked the magistrate to do so but the latter refused.

15.The respondent replied that the appellant was in substance asking for another adjournment; that the fact is that he has been refused legal aid more than once before; that appeal proceedings have been adjourned several times already; that the appellant again applied for legal aid 3 days before the present hearing.  The respondent submitted that the appellant was simply trying to delay the proceedings for reasons best known to himself. The respondent asked the court to refuse the application.

16.After considering the matter, I refused the appellant’s application for an order towards CAPO to conduct a forensic test on the first witness statement of Mr X.  I made clear to the appellant he had to prosecute his appeal right then and there.

17.By and large, the appellant repeated what he said on the last occasion about the first statement of Mr X which the appellant insisted was not made on 24 May 2016 but was instead made in June 2016.

18.Respondent responded by saying that the conviction hinged on the credibility of X and that was a matter for the magistrate; there is nothing to indicate that the magistrate was wrong.

19.The respondent submitted that the evidence was overwhelming.

The prosecution case

20.The complainant Mr X was a retired person and he was approached by the appellant, a stranger to him, at a park outside the Wanchai Court Building on 19 May 2016.  In a conversation lasting some 15 to 30 minutes, the appellant told Mr X about a court case in which he was involved and the ‘torture’ that his children were subjected to.  References were made to the Chief Justice and the ‘Court of Ali’.  The appellant further presented Mr X with papers from his briefcase and those papers contained wordings to the effect of bombing the MTR.  He even told Mr X that he did not care if innocent persons would be injured.

21.Mr X and the appellant exchanged contact and the appellant handed over a piece of paper with ‘ALI 55408522’ written on it (the ‘Note’).  The name ‘Ali’ matched that of the appellant’s and the mobile phone number was traced back to the appellant’s residential address in Shamshuipo. More importantly, the appellant himself admitted being user of the phone number in his first VRI.

22.Concerned by the situation, Mr X reported the case on 24 May 2016 and provided his first statement on that day.

23.On 26 May 2016, the police searched the appellant’s residence on the strength of a search warrant.  Inside the premises, the police seized a briefcase of the appellant and found therein 3 letters (collectively marked as Exhibit P2), which included :-

(a)  First letter: a 2-page letter dated 10 December 2015 and produced as Exhibit P2(2) [by slip of error[2], described as “Second Letter” by the magistrate in para 10 of the Statement of Findings];

(b)  Second letter: a 3-page letter dated 9 November 2015 and produced as Exhibit P2(1) [by slip of error, described as “First Letter” by the magistrate in para 10 of the Statement of Findings]; and

(c)  Third Letter: a 3-page letter dated 10 December 2015 and produced as Exhibit P2(3).

24.The First Letter was dated 10 December 2015 and addressed to the Chief Justice.  It contained an express threat of property destruction and damage, namely ‘I speak openly and frankly that the chief justice should Stop terrorism and torture on me and my children immediately otherwise I should hijack MTR and burn it with petrol bomb.  The chief justice would be responsible for all this because you are extremist and terrorists not me.  My children have been terrorized and tortured since 2010, I will have no other option but to fight for my rights’.  There was also a cartoon figure of a veiled man throwing petrol bomb.

25.The Second Letter was dated 9 November 2015, addressed to the Chief Justice and copied to a number of recipients.  The letter contained various allegations against the Chief Justice with references to terrorism and terrorists.  Specifically, the letter contained references to ‘The video statement of police DVD.  No AA39708/AA39720 and by statement evidence in the court, I have mentioned that because of your behaviour I will hijack the MTR and violence in the Court’ and the ‘Court of Ali’.

26.The Third Letter is substantially the same as the Second Letter but was dated 10 December 2015.  References identical to those in the Second Letter, namely ‘The video statement of police DVD.  No AA39708/AA39720 and by statement evidence in the court, I have mentioned that because of your behaviour I will hijack the MTR and violence in the Court’ and the ‘Court of Ali’ can be found.

27.Apart from the hardcopies of the 3 letters in Exhibit P2, the police seized the appellant’s computer and found therein softcopies of various similar letters.  Printouts of those letters were collectively produced as Exhibit P15.

28.The exhibits seized from the appellant’s residence, including the 3 letters in Exhibit P2 were shown to the appellant during his two VRIs conducted on 27 May 2016.  At trial, the prosecution adduced those VRIs as evidence.  There being no challenge against their voluntariness and admissibility, the VRIs were admitted by the magistrate.

29.The appellant’s VRIs are rather lengthy, they are set out below in some detail.

30.In the 1^st VRI, the appellant was shown the First letter and he admitted being author of that letter addressed to the Chief Justice.  He accused the Chief Justice of torture and terrorism and other judges of collusion (counters 223-252, 402-476).  He wrote the letter on 10 December 2015 but had not yet sent it to the Chief Justice (counters 372-399).  When asked to explain the threats to ‘hijack MTR and burn it with petrol bomb’, the appellant stated it was his intention to raise attention of the public and politicians (counters 480-650).  He wanted to affix the letter outside the Court building to attract media attention but had not yet done so (counters 651-728).  He needed the support of the British Consulate and had thus sent the letter to the Consulate by email to inform them of his situation (counters 731-850, 1062-1116).  He planned to send out the letter in the event that the British Consulate did not support him (counters 1123-1174).  On the pictures and figures shown in the First Letter, he had found them on the Internet (counters 851-1045).  He signed on a photocopy of the First Letter, together with the interpreters, and the signed copy was produced as Exhibit P10 (counters 1178-1200).

31.During the 1^st VRI, the appellant was also shown the Second Letter.  He admitted that it belonged to and was authored by him (counters 1201-1222, 1264-1267).  He admitted that the name (ie Ali Zulifqar), address and phone number (ie +852-55408522) stated at page 1 were his (counters 1223-1228).  The Second Letter was addressed to the Chief Justice and copied to a number of recipients (counters 1242-1263).  He wrote it on 9 November 2015 with the same purpose as the First Letter and had only sent it to the British Consulate with the First Letter (counters 1270-1392).  When asked to explain the threats at page 3 to ‘hijack the MTR and violence in the Court’, he said he had stopped himself from doing so (counters 1398-1455).  He signed on a photocopy of the Second Letter, together with the interpreters, and the signed copy was produced as Exhibit P12 (counters 1462-1489).

32.In the 2^nd VRI, the appellant was shown the Third Letter and he admitted that the name and address stated at page 1 were his (counters 34-72).  The letter was addressed to the Chief Justice and copied to various recipients (counters 73-96).  It was written by the appellant on 10 December 2015 and he had sent it to the British Consulate to ‘explain’ and ‘get rid of’ his ‘tension’ (counters 99-148).  He referred to certain court cases and accused the Chief Justice of torture and terrorism (counters 158-218).

33.He confirmed that his purpose of writing the 3 letters was to complain against the Chief Justice and other judges.  His intention was to insult, degrade and disgrace them but he had not yet sent out the letters pending reply from the British Consulate (counters 235-565).  He planned to affix the letters outside the Courts and Parliament (counters 568-605, 712-743, 777-843).  He will then go straight to the ‘embassy’ to avoid being arrested by the police (counters 607-691, 746-769).  He expected support from his ‘embassy’ (counters 848-875).  He signed on a photocopy of the Third Letter, together with the interpreters, and explained that it was an ‘update’ of the Second Letter (counters 883-942).  The signed copy was produced as Exhibit P12.

34.Further questions were asked of the First Letter and the appellant confirmed that he intended to ‘shock’ the Chief Justice by the reference to ‘hijack MTR and burn it with petrol bomb’ so that he would stop the oppression on him and his children (counters 943-1078).  As to the methods of sending the letter to the Chief Justice, he intended to submit them via the counter of the Judiciary (counters 1128-1198).  So far, he had only sent them to the British Consulate (counters 1201-1217).  He admitted printing the 3 letters with his computer at home (counters 1223-1226).  Later, he was shown various exhibits seized from his residence (counters 1230-1476) and asked to provide background information on himself (counters 1477-1659). Regarding the commission of the present case, he said he had been wronged by various parties and doing such ‘hoax everyday’ would make him ‘happy’ (counters 1660-1751).

35.At trial, Mr X was shown copies of the 3 letters in Exhibit P2.  He testified that he had been shown the First Letter on 19 May 2016 whereas the Second and Third Letters contained words similar to those in the papers shown to him.

36.Mr X was not asked to make any identification of the appellant in Court.

37.In addition to Mr X, the prosecution called various police officers as witnesses.

The defence case and how the magistrate dealt with it

38.There is a summary of the appellant’s evidence and how the magistrate dealt with it in paras 22-27 and 56-58 of the Statement of Findings, reproduced below:

“22. The defendant insisted to produce a number of items seized by the police from his residence as defence exhibit. Ms Sujanani, counsel on fiat, fairly handled the defendant’s request by way of an admitted facts.

23. None of those exhibits produced by the defendant, however, were relevant to the defence case or the issue of trial. For example, the 2 lighters found from the defendant’s residence was totally irrelevant to whether the defendant was the Male or not.

24. The defendant elected to testify in court. In a gist, he said that he could not recall what happened in May 2016. But he did not admit that he was the one who spoke to Mr X. He said that it was a stupid thing to do so.

25. He admitted that the police came to his residence and seized the various items, including Exhibit P2. He admitted that Exhibit P2 were written by him in December 2015 because these Letters seems like a medicine to him after he, or his company, lost a case in the High Court. He thought that he was a victim of the High Court case.

26. He submitted that Exhibit P1 (the search warrant authorizing the police to enter his residence) was signed by Mr Wahab, a Magistrate sitting in the Eastern Magistrate’s Court at that time, were also the same Magistrate who dealt with a summons concerning him, or a company for which he was a director, in the Eastern Magistrate’s Court on 25 May 2016. On that occasion, he abused Mr Wahab.

27. The defendant therefore opined that everything, including his being arrest by the police and all the evidence against him, was a frame up because he had abused Mr Wahab.

…

56. The defendant elected to give evidence. He testified that he could not recall what happened in May 2016 because it was 3 (sic) years ago.

57. The defendant, under cross examination, was very evasive. In particular, when Ms Sujanani put the prosecution case to him, he did not answer directly. When Ms Sujanani put the prosecution case to the defendant that he had told Mr X he would “bomb” and “fire” the MTR, he had showed Exhibit P2 (the 3 Letters) to Mr X and he had also given his contact information to Mr X, the defendant refused to answer in direct. The defendant merely asked Ms Sujanani to refer to the video recorded interviews. However, the defendant was not asked these questions in the video recorded interviews. I find the defendant evasive in court.

58. The defendant admitted in court that he did not know Mr X. Therefore, it would be impossible for Mr X to create Exhibit P18, which includes personal information of the defendant. Besides, the defendant admitted that the phone number and some words appeared in Exhibit P18 was written by him. He was unable to give any reasonable explanation as to why would Mr X came into possession of Exhibit P18. The defendant’s wife testified for the defendant and alleged that she saw Exhibit P18 in the defendant’s possession sometime in 2016, later clarified as “25 May”. Obviously, when she gave evidence in court, it was almost 2 years after the incident. It is inherently implausible for her to recall the exact date she saw Exhibit P18. Taking into account of the whole circumstance and the relationship between them, I do not trust the defendant’s wife. I reject her evidence.”

The way in which the magistrate dealt with the appellant’s allegation relating to Mr x’s first statement

39.During trial, the appellant elicited from PW9 WIP Kwok Yiu Ki evidence to the effect that it was her handwriting that was on 6 of the pages of the first statement of Mr X, copies of which were produced as Exhibits D17-D22.  It was however never put to her that the evidence was not truthful.  However, in his final submissions, the appellant alleged that only D22 (the first page of Mr X’s first statement) was in her handwriting while the rest (D17-D21) was in the handwriting of no less than 3 other persons (Appeal Bundle 1556L-O).

40.The appellant based his submission on the fact that he (remanded as a person of clear record), as well as other inmates at Lai Chi Kok of different nationalities, were of the same view, that those pages exhibited marks of different authorship (Appeal Bundle 1556O-S).

41.The magistrate succinctly dealt with the appellant’s allegation relating to Mr X’s first statement in paras 44-45 of the Statement of Findings, reproduced below:

“44. Kwok Yiu Ki (“PW9”), a women inspector, testified in court that she was the statement taker of Mr X on 24 May 2016.  She also confirmed that Exhibit P18 (the Note) was given to the police on that date.  Apart from that, she did not participate in the investigation of this case.

45. The defendant made a bare allegation against PW9 that she was not the statement taker.  I found no substance in this allegation.  I accept PW9’s evidence.”

The way the magistrate dealt with the appellant’s allegation against Mr Wahab

42.The magistrate dealt with the allegation against Mr Wahab in paras 46-50 of the Statement of Findings, reproduced below:

“46. Exhibit P1 was signed by Mr Wahab, a Magistrate sitting in the Eastern Magistrate’s Court at that time.  The defendant testified that he appeared before Mr Wahab at the Eastern Magistrate’s court on 25 May 2016.  He “abused” Mr Wahab.  One day afterwards, namely 26 May 2016, police arrived the defendant’s residence with Exhibit P1, a search warrant signed by Mr Wahab.

47. In the circumstance, the defendant submitted that all evidence against him was a frame up after he had abused Mr Wahab.

48. The defendant’s rationale was that: he “abused” Mr Wahab, then Mr Wahab signed a search warrant illegally, then the police arrived at his residence and then the police (may be under the instruction of Mr Wahab) invented all the evidence, including Mr X’s evidence, in order to frame up the defendant.

49. The defendant’s submission involved a serious allegation against a retired magistrate.  I find that inherently implausible.

50. I think it was merely a coincidence for Mr Wahab to be the same magistrate who dealt with the defendant in relation to a summons and signed the search warrant in this case.  I see nothing peculiar.”

Reasons for verdict

43.With respect, the magistrate correctly identified the two central issues in this case, namely (1) what happened on 19 May 2016; and (2) who was the Male that X spoke to.  He has also conducted a detailed analysis of all the related evidence.

44.In convicting the appellant, the magistrate found all prosecution witnesses honest and reliable and accepted their evidence.  The magistrate took into account the evidence that the contents of Exhibit P2 (the 3 letters) were consistent with what Mr X had read from the papers shown to him by the Male on 19 May 2016 and that the phone number of the appellant was the same as the phone number written on Exhibit P18 (Note).  The magistrate therefore drew the only inference that the appellant was the Male. He then found the charge proved.

45.Having gone through the Statement of Findings, I did not find anything unsafe or unsatisfactory about the conviction.

46.As regards the allegations regarding the first statement of Mr X and against Mr Wahab made at trial and repeated before me, I believe they arise from the mere speculation of the appellant without concrete evidence.

47.As regards the allegation that the magistrate had said that there was no case against the appellant, the latter has not pointed out to me at which place in the transcript that the magistrate said so. I do not believe there is any merit in this allegation.

Conclusion

48.In the premises, in the absence of any valid grounds of appeal coming from appellant, the appeal against conviction must be dismissed.  I confirm the conviction.

49.Before leaving the matter, I must express my thanks to Mr Ira Lui, Assistant Director of Public Prosecutions, for having prepared a comprehensive set of written submissions dated 29 August 2018 parts of which I have adopted as “The prosecution case” here.

Mr Eddie Sean, SADPP of the Department of Justice, for the Respondent

The Appellant appeared in person