HKSAR v. Ahmed Gulzar

DCCC 907/2021

[2023] HKDC 535

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 907 OF 2021

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REASONS FOR VERDICT

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Charge

1.The defendant is charged with possession of ammunition without a licence, contrary to section 13(1)  and (2)  of the Firearms and Ammunition Ordinance, Cap. 238.  The particulars of the offence allege that the defendant on or about 23^rd day of February 2019, in Hong Kong had in his possession ammunition namely 3,600 of live blank ammunition, without a licence.  The defendant pleaded not guilty to the offence.

Outline of the case

2.In gist, the prosecution case was that a parcel was sent from Germany to Hong Kong which contained 3,600 of live blank ammunition, subject matter of the charge.  Affixed to the parcel was a customs declaration header “Deutsche Post” containing the name and address of the sender and that of the addressee which is a company called S2S Services (HK)  Limited (hereinafter referred to as S2S).

3.A controlled delivery was made to S2S. At last the defendant appeared and signed on the receipt.  He was then arrested and he admitted under caution that his friend Manoj Kumar (hereinafter referred to as Kumar)  asked him to receive the parcel but he did not know the content of the parcel.

4.What he said was recorded in the notebook of the arresting officer who, at a later stage, conducted two Video Recorded Interviews (VRI)  with the defendant.  The prosecution, represented by Mr Maurice Tracy, sought to adduce the 2 VRIs as evidence against the defendant.

5.Mr Andrew Bullet, Counsel for the defendant, opposed the admission into evidence of the defendant’s 2^nd VRI.  He submitted that the defendant did voluntarily attend the 2^nd VRI but for reasons stated below, the court should exercise the residual discretion to exclude it.  In light of the opposition, the trial was conducted by way of alternative procedure, and the prosecution called a total of 6 prosecution witnesses (PW).

Issue of the trial

6.There is no dispute that the defendant did not hold a licence under section 13 of the Firearms and Ammunition Ordinance, Cap. 238 (the Ordinance).

7.The prosecution submitted that the major issue in this trial is whether the prosecution can prove beyond reasonable doubt that the defendant knew that the parcel contained ammunition.

8.Besides, in the course of the trial, the defence argued that whether or not the live blank rounds of ammunition fall within the definition of the Ordinance, and whether a certificate under section 22A of the Evidence Ordinance, Cap. 8 (hereinafter referred to as a 22A certificate)  was required for the production of the defendant’s mobile phone records and his WhatsApp messages records (hereinafter collectively referred to as Call Records).

9.The prosecution said that PW5 had examined the defendant’s mobile phone and retrieved the Call Records.  Such Call Records contradicted what the defendant said in the VRIs in relation to how long and how well he had known Kumar, and how many times he had received parcels for Kumar.  The prosecution said the defendant had told lies.

Special issue

10.There was no half time submission for the special issue, and I ruled there was a case to answer.  The defendant elected not to testify.  Having heard submissions from both parties[1], I did not consider that it was a case where I should exercise my discretion to exclude the 2^nd VRI on grounds of unfairness.

General issue

11.In respect of the general issue, the defence made a no case submission[2], and the prosecution made a reply[3] to it.  I ruled that there was a prima facie case.  Following that, Mr Bullet informed the court that the defendant elected not to testify nor called any defence witnesses.

12.Both parties then filed written closing submissions[4] and they orally addressed me some salient features of the issues involved.

Prosecution Case

13.As previously mentioned, the addressee of the parcel is S2S.  It is agreed under s65B[5] of Cap. 221 that S2S was incorporated in Hong Kong under the Companies Ordinance. Cap. 622 on 9 January 2017 and dissolved on 27 November 2020.  The director of S2S was Jain Shailender who lived in India.

14.In respect of how the subject parcel was discovered and delivered to S2S, it is admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221 that:

a)  On 21 February 2019 at 1245 hours, Customs Officer Ng Chi Chuen (Ng)  of Team 2, Parcel Clearance, Air Freight, Airport Section picked for examination an Air Parcel comprising a carton and contents sent from Germany to Hong Kong. It bore parcel number CY 51 25 44 44 5 DE. Affixed to the parcel was a Customs Declaration headed “Deutsche Post” containing the following information:

Sender:	Sven Seidler Mihlenweg 5, 91481 Altershausen, Germany
Address:	S2S Services (H.K.)  Limited Room 7, 16F Star Mansion, 2-3 Minden Row, Kowloon, Hong Kong

Telephone: 852-9282 0426

Parcel Number: CY 51254445 DE

Date of Posting: 2019-02-06

Total Gross Weight: 18 Kg

Description: Blank Shells for sound light effects (Toys)

b)  Around 1300 hours, Ng supervised another Customs Officer Yan Kin Man (Yan)  who opened the parcel / carton box. It contained 6 large boxes marked “Titan” each of which contained 8 smaller boxes, each of which contained 75 rounds of suspected ammunition, totaling 3,600 rounds.

c)  Around 1745 hours, Yan handed over to DPC 58673 of Crime Intelligence and Support sub-unit, Airport District Hong Kong Police the following exhibits:

(i)  3,600 suspected pyrotechnic ammunition;

(ii)  48 smaller boxes (P8 to P55);

(iii)  6 large boxes (P2 to P7);

(iv)  1 carton box CY 512544445DE

(P1, hereinafter referred to as the subject parcel);

(v)  A post packet examination report.

d)  In turn DPC 58673 took the above exhibits to Airport Police Station. At about 1805 hours on the same day, having again checked the numbers of the exhibits jointly with members of RCU NTS, he handed over to DPC 3750 (PW1)  of RCU NTS 1B.

(PW 1 & PW 6)

15.PW1 (DPC 3750)  and PW6 (DPC 8277)  were respectively assigned to be the exhibit officer and arresting officer in this case.  Their testimony corroborated with each other.

16.On 21 February 2019, PW1 went to the Airport Police Station and met DPC 58673 who handed over to him the subject parcel.

17.At 0635 hours on 23 February 2019, PW1 and PW6 received instructions to dress themselves as postal officers of Hong Kong Post and to conduct a controlled delivery of the subject parcel to the address provided in the Deutsche Post.  In cross examination, PW1 agreed that he was instructed to arrest anyone who signed on the receipt of the parcel whereas PW6 said that the instruction was to arrest the person who received the parcel.

18.At 0930 hours, they brought along with them the parcel which was placed on a cart and arrived in front of Room 7 of 16/F Star Mansion, 2-3 Minden Row, Tsim Sha Tsui, Kowloon (“the premises”)  i.e. the address appeared on the subject parcel. PW6 knocked on the door of the premises and PW1 stood on his right.

19.It is not in dispute that there were two men inside the premises and they were later known to be Ahmed Abdullah (“Abdullah”)  and Syed Muhammad Aslam (“Syed”).  Abdullah opened the door and PW6 told him that he had a parcel with him.  Abdullah then entered the first room of the premises and talked to another person in a foreign language.  Syed walked out from the first room and opened the iron gate.  PW6 explained to him in English that he was there to deliver the subject parcel.  Syed looked at the address which appeared on the parcel.  PW6 described that Syed seemed to be pressing his mobile phone to call someone.  PW1 said he saw Syed using a mobile phone to call and to speak to someone in a foreign language.  Afterwards, Syed instructed Abdullah to sign to acknowledge receipt of the subject parcel.

20.PW6 enquired whether Syed or Abudullah was the contact person of mobile number 92820426 (which appeared on the parcel).  They denied being the contact person for that number.  As a result, PW6 called that number and a man answered the call. At first PW1 spoke in Chinese but he then spoke in English:

PW1: Are you have an air mail package.

I am at Room 7, 16/F, Star Mansion, Minden Row

Man: Yes

PW1: how long you come back here take the parcel

Man: 10 minutes

PW1: See you later

21.While PW1 and PW6 were waiting outside the premises, they noticed that Abdullah was sitting on the sofa in the living room and Syed walking around. Later, Syed went into the toilet.

22.At 0943 hours, the defendant wearing a pair of slippers came from the lift of 16/F and walked towards the premises.  The defendant waved hands at PW1 and PW6 and said in Chinese “大佬，唔好意思” (Big brother, excuse me, transliteration).  PW6 pointed at the subject parcel and spoke to him in English “if the parcel was his”, to which the defendant said “yes”.

23.PW6 handed over the receipt to the defendant who took it and walked into the premises.  The defendant signed on the receipt.  He also asked PW1 and PW6 to enter the premises and to place the parcel in front of the TV in the living room.  PW6 asked the defendant for a company seal of S2S for verification.  PW6 saw the defendant take out a company seal from the under shelf of the coffee table in the living room and stamped the receipt.  After that, the defendant put the company seal into the right pocket of his jacket.

24.PW6 noticed that the information of the company seal tallied with the information of the subject parcel.  He immediately called for reinforcement.  A minute later, i.e. 0946 hours, his colleagues arrived at the scene to render assistance. 

25.In cross examination, PW1 agreed that Syed and Abdullah appeared to live in the premises and he recalled that one of them had taken a shower inside the premises.  He saw some upper garments and pants inside the premises and learnt that both worked in a money changer shop.

26.Inside the premises, there were 2 rooms and one of them was described by PW6 as a storeroom which was locked at that time.   Enquiries were made to the defendant, Syed and Abdullah if they had the key to the storeroom but they said no.  Therefore, PC 5589 broke into the storeroom.

27.At 1000 hours, PW6 arrested the defendant. Under caution the defendant said “My friend Manoj Kumar told me to receive the air parcel, I don’t know what is inside”.  PW6 then asked the defendant a number of questions which were, together with the verbal admission, subsequently post-recorded in his police notebook.  The post record is as follows:

PW6: Where is Manoj Kumar come from?

Def: India.

PW6: Where is Manoj Kumar now?

Def: India.

PW6: Do you have any contact of Manoj Kumar?

Def: His phone number is 56317175 and he lives in here.

PW6: Do you have any keys of here, Room 7, 16^th Floor, Star Mansion, 2-3 Minden Row, Tsim Sha Tsui, Kowloon?

Def: Yes, Manoj Kumar gave the keys to me yesterday afternoon.

PW6: How many times you receive air parcel for Manoj Kumar?

Def: Two times including this time.”

28.It is an admitted fact that Kumar left Hong Kong through Hong Kong Airport after 1709 hours on 22 February 2019 (i.e. the day before the offence date).

29.Syed and Abudllah were also arrested. 

30.Upon a body search of the defendant by PW6, the following items were found:

(i)  the company seal from the pocket of the defendant’s blue jacket;

(ii)  a bunch of 7 keys from the defendant;

(iii)  a pink Samsung mobile phone from the right pocket of the defendant’s trousers;

(iv)  a blue Nokia mobile phone from the left pocket of the defendant’s trousers;

(v)  a brown wallet from the right rear pocket of the defendant’s trousers, and the wallet contained a rent receipt in respect of the premises naming Manoj Kumar and dated 30 January 2019.

31.At 1055 hours, the defendant signed on PW6’s police notebook that he consented to give the passwords of his two mobile phones to the police.

32.At 1205 hours, upon search of the premises, a DHL envelope containing a letter dated 8 January 2019 to S2S was found.  The addressee was S2S for the attention of ‘Mr Manoj Kumar, Manager”.

33.At 1310 hours, Mr Yakoob[6] the Urdu interpreter, and Mr CY Pang[7],  the English interpreter, arrived at the scene to assist PW6.

34.Around 1430 hours, PW6 took the defendant to his residence which was situate at Room 3, 3/F of Star Mansion for a house search.  Nothing suspicious was found.  At 1448 hours, the 3 arrestees were escorted to Tsim Sha Tsui Police Station.

35.With the assistance of the two aforementioned interpreters, PW6 issued a total of 4 “Notice to Persons in Custody” to the defendant[8]. At 1825 hours, PW6 read over the content of his notebook to the defendant who signed on it. 

36.At 2140 hours, PW6 conducted the 1^st VRI with the defendant in the presence of Mr CY Pang and Mr Yakoob.  On the following day i.e. 24 February 2019 at 1649 hours, PW6 took the 2^nd VRI in the presence of Mr Ahmed[9], an Urdu interpreter, and Mr Pang. The 2 VRIs were played in court.

The gist of the VRI

37.In the 1^st VRI, the defendant said:

(i)  he came to HK from Pakistan in 2013;

(ii)  he knew Kumar for 2 months; Kumar is an Indian male who used to live in India; he had no deep relationship with Kumar, just causal friend; he knew the WhatsApp number of Kumar 5631 7175;

(iii)  the Nokia phone belonged to him;

(iv)  the Samsung phone belonged to him; it was an internet phone and Kumar’s phone number was stored in it;

(v)  he had used the number 9282 0426 for a very long time and had never given this number to anyone for use;

(vi)  he used WhatsApp for contacts and the name Bhalla Jee stored in the phone referred to Kumar;

(vii)  Kumar had previously asked him once to receive the parcel which was in late January 2019;

(viii)  on 22 February 2019, he met Kumar in Chungking Mansion; Kumar said there was a carton to be arrived tomorrow or the day after tomorrow; Kumar gave him the keys of the premises; Kumar asked him to receive the parcel and placed it in his flat; Kumar did not tell him what it was; Kumar told him if asked by the courier to stamp on the parcel, he could get the company seal from the coffee table in the living room; it was the first time he saw the company seal;

(ix)  he simply helped his friend to receive the parcel;

(x)  the receipt found in his wallet was given by Kumar on 22 February;

(xi)  he had never heard of S2S; had no relationship with S2S; did not know the relationship between S2S and the address of the premises; did not know why his mobile phone number appeared on the Deutsche Post of the subject parcel.

38.In the 2^nd VRI, the defendant was asked again about his knowledge of the parcel, the keys, the company seal and how long he had known Kumar.  Regarding these matters, he maintained the version he gave in the 1^st VRI.  He also said he knew little English.  He was asked if he had anything to say in respect of the following matters:

(i)  when he was shown two screen shots which captured from the WhatsApp communication he had with Kumar on 29 June 2018, D had nothing to explain;

(ii)  the defendant was shown a photo of a TV dated 12 July 2018 which was sent to Kumar, the defendant offered no explanation;

(iii)  on 3 November 2018 Kumar sent a picture to the defendant in relation to a shipment of DHL. D said he did not know about and did not remember;

(iv)  there were other messages including audio messages between them which took place in November and December 2018, the defendant said he did not remember.

(PW 2)

39.Mr Benjamin Wong, forensic firearms examiner, was called to give expert evidence.  Taking into account that Mr Wong had given expert evidence before, the qualifications he had attained, the training he had received and that there was no dispute as to his expertise, I ruled that he could give evidence as an expert in his field.  Mr Wong’s 13 witness statements, almost identical in content, were produced. 

40.For reasons which would be apparent later, there is no need to rehearse the evidence of PW2. 

(PW 3)

41.PW3 is Madam Hwan who is the landlady of the premises.  She was tendered for cross examination.  She agreed that in June 2018 she signed a tenancy agreement with the tenant Bhalla Sanjeev for the period from 1 July 2018 to 30 June 2020.  The tenancy agreement was shown to her but she said she could not recall the name of the tenant nor read English.  She remembered that the tenant told her two other persons would live in the premises.

42.She also agreed that she entered a tenancy agreement with Kumar for the period from 1 January 2019 to 30 June 2020.  She agreed that Kumar paid her rent in cash. 

(PW 4)

43.Inspector Kwong (PW4)  gave evidence that the defendant had never held a licence to hold firearms / ammunitions.  Besides, he agreed in cross examination that it was his understanding under Cap. 238 a company was not eligible to apply for a licence to hold firearms and ammunitions.  A responsible officer should apply on behalf of the company, and such a responsible officer should either be a member of the board of directors or any other person who was mainly responsible for the management of the company.

(PW 5)

44.Mr Hung Chi On (PW5)  of Forensics and Training Division of Cybersecurity and Technology Crime Bureau was called.  He had conducted digital forensic examinations on the defendant’s (i)  Samsung mobile phone, (ii)  the SIM card and (iii)  the memory card.  His expertise was not challenged and I ruled that he could give evidence as an expert in his field.  His witness statement was produced in which he described which tools he used to retrieve the data from the three items.  He was asked about two entries in the “Exported WhatsApp Message Records” (P81)  which showed that the telephone number 56317175 (the defendant said this number belonged to Kumar)  and 92820426 (the defendant’s phone number)  started to have WhatsApp messages since 29 June 2018.

45.PW5 testified how he considered the time and date on P81 was accurate. I will further deal with his evidence in the paragraphs below.

Analysis

46.In reaching my verdict, I bear in mind that the prosecution has the burden to prove the charge against the defendant beyond a reasonable doubt.  The defendant has to prove nothing.  I direct myself that I must be sure of the defendant’s guilt. 

47.The defendant has a clear record which means that he is less likely to commit an offence and is more credible in what he said in the VRIs. 

48.The defendant elected not to testify in both the special and the general issues and no adverse inference should be drawn against him for doing so.  However, it means that there is nothing (apart from what he claimed in the VRI)  from the defence to challenge, to dispute, to weaken and to contradict the prosecution case.

49.Besides, I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw against the defendant from the facts proved.

50.The VRIs of the defendant comprised both admissions and self-serving assertions.  I must consider the whole statement, both the incriminating parts and the excuses or explanations given in deciding where the truth lies.  In other words, I give myself directions in accordance with the principles laid down in R v Sharp (1988) 1 WLR 7.

Ruling on the special issue

51.Mr Bullet opposed the admission into evidence the 2^nd VRI on the ground that it was conducted in breach of Rule III(b)  of the Rules and Directions for the Questioning of Suspects and the Taking of Statements (hereinafter referred to as the Rules)  and the court ought therefore to exercise its discretion to exclude it.

52.Mr Bullet submitted that the defendant had already given comprehensive and clear answers in the 1^st VRI and it was clear that the purpose of the 2^nd VRI was in order to extract incriminating admissions, especially by reference to irrelevant matters including possible uncharged acts.

53.Besides, most if not all of the questions put in the 2^nd VRI have been answered with the defendant declining to provide an explanation.  All were on peripheral and non-probative matters.  The defendant was in fact exercising his right of silence and it would therefore be improper to receive the 2^nd VRI in evidence or to draw any conclusions as to his credibility therefrom.

54.What Mr Bullet meant by uncharged acts, as far as I understand from him, was that the defendant was a Form 8 holder who was not permitted to take up any employment in Hong Kong.  His previous involvement with Kumar and the receipt of the subject parcel might be considered that there was a pattern of employment between them.

55.I find it difficult to understand how, according to what the defendant had claimed i.e. to receive parcels for his friend, would mean that he had committed an offence under section 38AA of the Immigration Ordinance, Cap. 115.

56.In any event, Mr Tracy expressed that no reliance was placed nor any evidence adduced as to ‘uncharged acts’.  The defendant’s status as a Form 8 holder was necessarily in evidence if only to confirm he was legitimately in Hong Kong.  The prosecution was certainly not in any way seeking to suggest or to prove in respect of his conduct as a Form 8 holder since 2013 to time of arrest on 23 February 2019 that he had broken the law in respect other than that with which he was charged.  As such, Mr Bullet’s concern in relation to uncharged acts simply did not exist.

57.Mr Bullet also said that the 2^nd VRI referred to some WhatsApp messages between the defendant and Kumar, and the prosecution relied on the Call Records of PW5 to prove that the time of the communications was correct.  If so, the prosecution had to produce a s 22A certificate.  I will deal with whether or not a s 22A certificate is required in separate paragraph.  Now, I want to focus on the Rules.

58.Rule III(b)  of the Rules provides “It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted.  Such questions may be put where they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement.”

59.The 1^st VRI was conducted from 2147 hours to 2350 hours on 23 February 2019.  According to the testimony of PW6, he took the defendant away from the premises at 1455 hours.  Upon arrival at Tsim Sha Tsui police station, he together with the defendant had to go through different procedures, namely to report to the Duty Officer; to serve the Notice at different times. Finally, it came to a stage to conduct the 1^st VRI.

60.Questions asked in the 1^st VRI were mainly about the defendant’s background; the relationship he had with Kumar; how and when the communications took place during which Kumar asked him to receive the subject parcel; what he had to do upon receipt of the parcel; his knowledge, inter alia, about the content of the parcel, the sender, S2S, the company seal; whether he had obtained a licence; what were the use of the items found on the defendant and seized at the premises namely the keys, the mobile phones, the receipt in his wallet, the documents in the bedroom; what were the telephone numbers of his two mobile phones etc.  The 1^st VRI came to an end 10 minutes before midnight.

61.To the knowledge of PW6, the defendant was charged well after the taking of the VRIs i.e. in 2021 after the suspected ammunition was examined.

62.In cross examination, PW6 said that the purpose of conducting the 2^nd VRI was to make clarifications resulting from the answers the defendant gave in the 1^st VRI.  The 2^nd VRI was conducted from 1649 to 1930 hours on the following day.

63.PW6 explained that in the 1^st VRI, the defendant said he had known Kumar for 2 months.  While he was conducting the 2^nd VRI, he examined the mobile phone of the defendant.  It showed that the defendant had known Kumar for more than 2 months and had received other parcels for Kumar. As such, PW6 considered that he should make enquiries with the defendant to clarify these matter.

64.Besides, when PW6 said he found a photo of a parcel (see photo 40 of book 3)  in the defendant’s mobile phone which he considered it relevant to the present case.  Therefore, he considered it necessary to clarify with the defendant.

65.PW6 disagreed that most of the contents of 2^nd VRI was the same as that of the 1^st VRI.  He explained that the questioning of the defendant was done through double interpretations, and sometimes the meanings were not correct which required him to ask again.

66.I note that in the 1^st VRI, the questions asked by PW6 mainly relate to the subject offence.  I also note that in the 2^nd VRI, the questions asked were mainly focused on the relationship with Kumar, their previous dealings, and the contents of the messages found in the defendant’s Samsung mobile phone.  I consider such contents, as they appeared to PW6 at that time, relate to the issues of the subject charge i.e. his knowledge of the content of the subject parcel and the relationship with Kumar.  The defendant was asked if he wanted to offer any explanation in respect of their previous communications and/or dealings e.g. the communication on 29 June 2018; 12 July 2018; October to December 2018 and January 2019.  These are new areas not covered in the 1^st VRI but which were relevant to the issues of the subject charge, at least, the police were clarifying how long he had known Kumar and how well their relationship was.  These questions were asked as a result of the defendant who said that he had known Kumar for only 2 months, and had, prior to the subject offence, received a parcel for Kumar once.

67.Having considered the content of the whole 2^nd VRI, PW6 was in fact there and then doing exactly what the Rules allow him to do i.e. to clear up an ambiguity in a previous answer or statement.  He was trying to clarify how long they had known each other; how many times the defendant had received parcels for Kumar, etc.

68.It is of note that some of the questions asked were repeated in the 2^nd VRI e.g. about the company seal and the keys of the premises.  Unlike in the 1^st VRI, questions about the company seal and the keys asked in the 2^nd VRI tended to be more specific and were for the purpose of clearing ambiguities.

69.Taking into account all the circumstances of the case, I find that PW6 was entitled to make further enquiries so as to place all that was said by the defendant in a fair and proper context.  I do not consider that there is a breach of Rule III(b)  as alleged by the defence.  The questions asked and the answers given were relevant.  I do not therefore consider that I should exercise my residual discretion (which should be exercised sparingly)  to rule out the 2^nd VRI.  And, no unfairness is caused to the defendant.

Ruling on the general issue

70.The prosecution invited the court to draw an irresistible inference that the defendant knew the content of the subject parcel.  In this regard, Mr Tracy contended that in those VRIs, the defendant lied about how well and how long he knew Kumar.  This is particularly clear when his interview accounts are contrasted with the Call Records (P80 and P81 respectively).  The prosecution said that:

(i)  the lies were deliberate;

(ii)  the lies were material;

(iii)  they have no innocent explanation;

(iv)  the lies are independently confirmed as lies by the Call Records.

71.In the course of the trial, Mr Bullet argued that the production of the Call Records required a s 22A certificate.  In support of this, Mr Bullet referred to HKSAR v Fung Hoi Yeung CACC 62/2019 (date of judgment 15 November 2021)  and HKSAR v Li Cheung Yin (HCCC 217/2017). 

72.In reply, Mr Tracy said that such a certificate was not required.  PW5 was called as an expert, a live witness, to prove the consistency of the date and time as shown on the Call Records which suggested that there was no defect in the timing mechanism.

73.When Mr Bullet made closing submissions on the issue of a s 22A certificate, I referred him to the judgment of the Court of Appeal HKSAR v Fong Hoi Yeung CACC 62/2019 given on 29 July 2022.  Mr Bullet submitted that he had nothing more to say on this.

74.The prosecution called PW5 in order to prove that the date and time shown on the Call Records is accurate and so the defendant lied about how long he had known Kumar and how many times he had received parcels for Kumar.

75.PW5, an expert, gave clear evidence that he had conducted digital forensic examinations on the defendant’s (i)  Samsung mobile phone, (ii)  the SIM card and (iii)  the memory card; how he retrieved data therefrom; and how to interpret the Call Records.

76.PW5 gave clear evidence that the server of WhatsApp correctly recorded the time and date of the two relevant entries referred to by the prosecution i.e. serial number 1 and 175 on P81.  These two entries showed that there were communications between 92820426 (belonged to the defendant)  and 56317175 (belonged to Kumar as described by the defendant), and they took place on 29 June 2018 and 2 November 2018 respectively.

77.PW5 continued to say that the server of WhatsApp correctly recorded the time.  Every time a message was sent or received, it had to go through the server of WhatsApp.  He had never heard of WhatsApp server giving inaccurate time due to malfunction nor heard of any reports from others finding inaccuracy in WhatsApp server.

78.He disagreed in cross examination that the WhatsApp server did go down periodically.  PW5 explained that if WhatsApp server was down, one could not use WhatsApp to send and to receive messages at all.  Besides, a WhatsApp user could not manually change the date and time of the WhatsApp message.

79.PW5’s evidence was in fact to some extent not challenged.  Having considered his testimony, I find PW5 credible and reliable and I accept his testimony entirely.  PW5 was called as an expert, and he had never heard that the WhatsApp server was down / malfunctioned or gave inaccurate time.  I find that the time and date shown on the Call Records was accurate and true.

80.Given his evidence, I do not consider that a 22A certificate is required.  A statement contained in a document produced by a computer shall be admitted in any criminal proceedings as prima facie evidence of any fact stated therein if direct oral evidence of that fact would be admissible in those proceedings; and the conditions in subsection (2)  of s 22A of Cap. 8 are satisfied.  Here, we have a live witness, an expert, to testify how the entries in the Call Records existed and how accurate the time and date as shown therein was true.

81.Since I have accepted the evidence of PW5, it means that the date and time of the two relevant entries was accurate.  In other words, the communications between the defendant and Kumar started as early as in June 2018.  This contradicted what the defendant said in the VRI.  The prosecution said that the defendant had told lies.

82.The prosecution referred to Yuen Kwai Choi v HKSAR (2003)  6 HKCFAR 113 relied upon these lies:

(a)  as being obviously uttered in a consciousness of guilt and in order to distance himself from Kumar and from the unlawful contents of the parcel which he received. They are probative of guilt.

(b)  In so far as the VRI’s contain a defence based on ignorance that the parcel contained ammunition they are mixed statements. The lies (even if they were not directly probative of guilty)  obviously undermine totally any value which might attach to the defendant’s assertions of ignorance in the same VRIs.

83.On the issue of lies, I have referred myself to the principles laid down in Yuen Kwai Choi and the Specimen Directions (Chapter 112).

84.Chan PJ in Yuen Kwai Choi said :-

“32. Lies usually affect credibility only. As a matter of law, a lie in itself can never prove guilt.

37. In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. In case where the rejection of any explanation given by an accused almost necessarily leave the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient… In these situations, there is no danger of improper use by the jury of a lie told by the accused and there is no risk of miscarriage of justice.”

85.I consider that a lies direction is not appropriate in the given situation.  The statement in relation to how long the defendant has known Kumar and how many times he has received parcels for him appears to contradict the Call Records.  However, it is a matter which goes to the general credibility of the defendant.  The statement was about the time and duration of their relationship.  In any event, I do not consider that the statement, even if it is a deliberate lie, relates to any material issue of the case.  It has nothing to do with the central issue of the case i.e. ‘knowledge’ of the content of the subject parcel and so it does not assist the prosecution case, not to mention that there could be other innocent motives for such discrepancies.

86.I now go to consider the central issue of the case: knowledge of the defendant.

87.Mr Bullet said the prosecution put its case on the basis that the defendant was aware of the content of the parcel, but one must know what one possessed in order to be in possession of it.  Not only was the defendant never in possession of the parcel, there was also no evidence that he was aware of its contents, both hurdles which, it was submitted, the prosecution failed to surmount.

88.In dealing with the central issue of possession, I bear in mind what the defendant said did not tally with the Call Records.  Despite so, I still consider that the prosecution has failed to prove the charge against the defendant.

89.I find what the defendant said under caution, at scene and at the VRIs, coupled with all the relevant circumstances, might be true i.e. he received the subject parcel for Kumar and he did not know the content of it.  The reasons for my finding include the following.

90.The defendant said his friend Kumar asked him to receive a parcel. Kumar is not a fictional character, a non-existent person.  The movement record and the tenancy record show that a person called Manoj Kumar did exist.  When the defendant was cautioned for the subject offence at scene, he immediately volunteered information in relation to Kumar’s full name (Manoj Kumar); his whereabouts (in India); his telephone number (56317175); his home address (the premises); and his key of the premises.  The information of Kumar’s full name and home address is consistent with the movement record and the tenancy agreement.  The fact that Kumar was, at that time, in India or at least not in Hong Kong was also consistent with the movement record that Kumar left Hong Kong the day before the offence day.  There was nothing to contradict what the defendant said.

91.At the time of the offence, the defendant was not only a friend of Kumar, he could also be considered as Kumar’s neighbor, both of them lived in the same building but different floors.  As such, it might be the case, as put forward by the defendant, that it was Kumar who asked him being his neighbor to come up from 3/F to 16/F to receive the parcel for him.  Given that the defendant is a Form 8 holder, which means he is not allowed to work in Hong Kong and is therefore always available than others who need to work to render assistance.  According to PW6, the defendant appeared at the scene shortly after he called him.

92.The defendant denied knowledge of the content of the parcel.  This saying might be true.

93.The only link between the subject parcel and the defendant was that his telephone number 92820426 appeared on the Deutsche Post.  Notwithstanding this, there is no evidence that the defendant was the importer of the subject parcel.

94.Besides, the subject parcel was not addressed to the defendant personally.  It was indeed addressed to S2S, a company which did exist on 23 February 2019.  The documents from the Companies Registry show that the only director was Jain Shailender.  There is no evidence that the defendant has a role in S2S.  Moreover, the defendant did not bring with him the company seal to the premises.  When he was asked to put a stamp on the receipt, he fetched the company zeal which was placed in the under shelf of the coffee table of the premises.  On the contrary, the name of Kumar and his position in S2S being manager was written on the letter found in the master bedroom of the premises. I am not saying what was written on the letter was true.  However, it shows, at least, that Kumar and S2S (the addressee of the parcel)  did have some connections.  As described above, the defendant took no role in S2S.  I am unable to see how he was related to S2S which was the addressee of the subject parcel.

95.Not only that the defendant has no connection to S2S, he has no connection to the premises.  The subject parcel was sent to the premises but he was not the tenant / occupier of it.  Kumar was.  At the time of the controlled-delivery, the defendant was not found in the premises.  In fact, Syed and Abudllah seemed to live there and Abudllah was even asked by Syed to sign on the receipt.  There is no dispute that the defendant lived downstairs.  Police conducted a house search at the defendant’s residence and nothing suspicious was found.

96.Having considered all the evidence of the case including the above, I consider what the defendant said at scene and repeated in his VRIs (and I bear in mind he has a clear record)  might be true.  As said before, the only link between the defendant and the subject parcel was that his phone number appeared on the Deutsche Post.  It is equally consistent with the explanation put forward by the defendant i.e. he helped his friend who was not in Hong Kong at the material time receive the subject parcel.  As there exists a reasonable doubt, the defendant is acquitted of the charge.

97.As a further note, Mr Bullet argued that the defendant did not have physical custody and control of the subject parcel.  According to the evidence, the defendant did not even touch the subject parcel.  Given my findings above i.e. what the defendant said might be true, it is not necessary for me to deal with this issue.  And it appears that the case to which Mr Bullet referred: HKSAR v Mohammed Saleem [2009] 1 HKLRD 369 supports his contention.