HKSAR v. Md Arif Hossain and Another

CACC 177/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 177 OF 2008

(ON APPEAL FROM DCCC NO. 775 OF 2007)

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

BETWEEN

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

Before : Hon Stock JA, McMahon and Wright JJ in Court

Date of Hearing : 21 January 2009

Date of Delivery of Judgment : 13 February 2009

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

J U D G M E N T

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

Hon Stock JA (giving the judgement of the Court):

Introduction

1.The applicants are brothers, and they now seek leave to appeal against various convictions after trial before Judge Whaley in the District Court.

2.There were four charges.  The order of the charges bears no resemblance to the chronology of events.  Charge 4 (indecent assault) arose from an incident on 23 July 2007 in the New Territories in the course of which the first applicant, D1, was said to have indecently assaulted a married Indonesian woman to whom we shall refer as K.  It was alleged that he then ripped a necklace from her: this was charge 1 against D1, a charge of robbery.  Her husband was said to have been severely beaten two days later, that is, on 25 July 2007, by D1 and the second applicant, D2.  They were therefore accused in charge 2 of wounding with intent to cause grievous bodily harm.  There was a further charge (charge 3) against D2 alone, that on 25 July 2007, having landed in Hong Kong unlawfully, he remained in Hong Kong without the authority of the Director of Immigration.  The applicants pleaded not guilty to each of the charges they faced, but the judge convicted them on each charge.

3.The judge imposed a sentence of 12 months imprisonment for the indecent assault to run concurrently with a 12 month sentence for the robbery, only six months of which was ordered to run consecutively to the sentence of 2 years 6 months he imposed for the wounding with intent to do grievous bodily harm.  Not surprisingly, there is no appeal against these sentences.  On the facts that were said to have been proved, they are dramatically low.  There was an application by D2 for leave to appeal against the sentence of 15 months imprisonment imposed for the immigration offence but, at the hearing before us, he abandoned that application and, accordingly, it is dismissed.

4.The immigration charge is unconnected with the other three charges and we shall first address the convictions upon the first, second and fourth charges.

The prosecution case

5.K’s account, which was accepted by the trial judge, was that D1 had been making a nuisance of himself on several occasions prior to 23 July, though she had sought to discourage his advances.  On 23 July, she was walking back from the market when he took hold of her by the neck and pushed her to a patch of grassland where she fell to the ground.  He bent down and squeezed her breasts through her blouse, causing her considerable pain, and he also tried to pull her trousers down but did not succeed.  This account was the basis for the indecent assault charge.  He then pulled at the necklace which she was wearing and made off with one of the two pieces into which it broke.  This was the basis of the robbery charge.

6.She went home but did not tell her husband that night what had happened, because she was frightened and embarrassed to do so.  She soon told him about it, however, and on 25 July she and her husband went to a hut where D1 lived.  D1 arrived there shortly after and whilst he and the husband were having an argument over what had happened, D1 denying the allegation, D2 arrived and - so the account went - the two brothers pushed the husband into the hut and set about him with a vicious attack that included striking him on his head with a hammer.  There was a third man present, an acquaintance of the applicants, who joined in the attack.  The three of them further struck the husband with a flower pot,stones and a stick.  K telephoned the police and they arrived to find the husband severely injured.  He was taken to hospital with multiple lacerations and abrasions and there were scalp wounds that had to be sutured.  D1 also had some injuries, said by the prosecution to have been sustained during the defence which the husband, a strong individual, had offered.  These events were the subject of the second charge leveled against both applicants, namely, wounding the husband with intent to do him grievous bodily harm.

The defence case 

7.On the defence side, only D1 gave evidence.  He said that he had struck up a relationship with K who, because he was in Hong Kong seeking refugee status, had offered to marry him but that he would have to pay money for the favour.  She came to his house where they had coffee and talked.  He said that thereafter, they occasionally met, sometimes at the hut, and also talked with each other over the telephone on several occasions over a two week period.  He lost interest, but she continued to telephone him and he asked her not to do so any more.  He denied that he had assaulted her or robbed her of her necklace.

8.As to the events of 25 July, he had returned home at about 8.15 p.m. and there he saw K and two men, one of whom transpired to be K’s husband.  She started screaming and he, D1, was set upon by the two men, one of them with a hammer.  He saw one of the men stealing his sister-in-law's jewellery.  Whilst the husband was beating him, the other man made off with the property.  After K, her husband and the third man had run off, D2 checked for his wife's jewellery and money, confirmed that they were missing and called the police, reporting a robbery and the fact that D1 had been beaten.  D1 asserted that D2 told the police that some people had stolen things from the house.  The property stolen included gold jewellery, $8,000 in cash, a mobile telephone and a laptop computer. 

9.D1 was taken to hospital with injuries to various parts of his body including a 6 cm laceration to the scalp.  The injuries occasioned to the husband were, he said, inflicted in the course of D1’s self-defence.
Other evidence

10.The circumstances in which the applicants came to be arrested are relevant to these applications because the first ground of appeal advanced by both is that the trial judge used the silence of the applicants, upon and after their arrest, against them.

11.There was evidence that the police arrived at the scene at 8.55 p.m. following a telephone call from a woman, presumably K.  It was an admitted fact that at 8.59 p.m. the police received an emergency call from a male reporting himself to be at the scene in question but speaking very quickly, so much so that it was difficult to catch what was said.

12.The Reasons for Verdict record the testimony of a woman police constable who, based on information provided by K, arrested D1 for indecent assault, robbery and malicious wounding.  We do not have the transcript of that testimony but we proceed on the assumption that when D1 was arrested, he was cautioned.

13.We have the transcript of the evidence of PC 473 who arrested D2.  He also arrived at the scene at about 8.55 p.m.  He spoke to D2 and asked where he was from:

“A.  He told me he came from Bangladesh but it took him several times before I could actually understand what he was saying.

Q. And what else happened?

A. Then he used some sort of body language and he took me to the material house. … Then inside the premises, two South Asian males they did this sort of action to indicate that… they also lie down…. After they indicated some sort of body language, we continued to communicate with them with simple English but all along we were not able to communicate.

….

Q. At 2115 hrs did you arrest the second defendant?

A. Yes.

Q. For what?

A  Fighting in public place and also illegal remaining.

Q. Did you caution him?

A. Yes.

Q. Was there any reply to your caution?

A. He did not offer any reply.”

14.This officer was asked in cross-examination on behalf of D1 whether it was his understanding that the two defendants had told him that they had caught the two others “trying to burgle their premises and that’s why the fight had started”.  The officer answered that if the word “burglary” had been used, if he had sensed it, he “would have asked him to keep repeating it until I get to know it but at the scene he did not mention such a word. … he did not even mention theft”.  “But,” said counsel, “you say you had difficulty understanding him,” and the officer answered: “That's right.”

Reasons for Verdict 

15.The judge noted in relation to the evidence of K that there were a number of discrepancies and he took these into account, commenting that she was clearly not a well-educated person nor articulate.  She had a tendency to roll events together.  Nonetheless, he found her account of the events of 23 and 25 July to be clear and compelling.  In relation to her husband, he noted the fact that the husband had previous convictions but nonetheless found that “his account of events was clear and credible and had the ring of truth about it.”

16.A considerable portion of the Reasons for Verdict is devoted to the suggested failure of the applicants to inform the police that they had been the victims of a burglary.  The judge noted that it was fundamental to D1’s account of the events of 25 July that K, her husband and another had broken into the hut and were stealing property.  It is necessary to set out in full what the judge then said:

“38. There is no dispute that the police attended the scene at 2055 hours following a call from a female.  This corroborates the evidence of PW1 that it was she who called the police when she saw her husband being battered by the defendants.

39. The 1^st defendant, it will be recalled, testified that the 2^nd defendant had called the police after PW1 and PW2 had left the premises, and had told the police, after they had arrived that things had been stolen from his house.

40. There is also the admitted fact that at 2059 hours, which it should be observed was some 4 minutes after the police had attended the scene at 2055 hours, the police 999 service did receive a call, the garbled report of which I have described above. .. It is clear that it did not include information about the burglary or robbery or things having been stolen, and allowing for the fact that there were admittedly difficulties in communication with PW4 (PC473) and the defendants, the fact remains that the 1^st defendant when he was arrested at the scene did not tell the police, on the evidence, that PW1 and PW2 and another had been caught by them in the act of burgling the house.

41. Similarly, the 2^nd defendant when he was arrested at the scene and cautioned made no reply and did not make any report to the police that PW1 and PW2 had been burgling their home, and he made no mention at all to the police officer who spoke to him, PW4, of burglary or theft.

42. When the 1^st defendant was cross-examined as to why he had made no mention of the fact of burglary to the police when he was interviewed at the police station, he said he had tried to tell the police about it but they did not believe him.  They told him that he had already been charged and he could say whatever he wanted to say in court.  The only evidence of any report having been made to the police of a burglary at their house on 25 July is contained in a letter written by the 1^st defendant to the officer-in-charge of Cheung Sha Wan Police Station from the remand prison dated 31 August last year :

“Sir, I beg to state that I am Arif Hossain, permanent resident of Bangladesh but last 25 July somebody robbed my home and wounded me with intent.  Unfortunately I was arrested by police, now I am in Lai Chi Kok.  I wish you to come and take my statement against the robbery.  I request you sir to take my statement as soon as possible."

43. In my view, it is clear that if the defendants had caught PW1 and PW2 and another male in the act of burgling their home on the night of 25 July as they claimed, which had led directly to the fierce physical confrontation and infliction of injuries on the basis of which the defendants were arrested on that same night, it is extraordinary that there was no contemporaneous or at least timely report by them of such burglary to the police.  The 1^st defendant's letter to the police dated 31 August which I have referred to, does not qualify as such a timeous report.  It has all the appearance of being a belated afterthought or reconstruction by him of what had taken place on the night of 25 July.

44. If the 1^st defendant's account was true, in my view there is no doubt that a reasonably contemporary report of burglary would have been made to the police by the defendants themselves or on their behalves.  The admitted difficulties in communication between them and the police who attended the scene were not insuperable, and were not such as to prevent a report of the burglary being made to the police, nor does it explain why such a report was not made.  Bearing in mind that the 1^st defendant was communicating in simple English with a police officer who spoke to him and that no report of such burglary was made to the police (apart from the 1^st defendant’s belated letter of 31 August), it was clear to me on all the evidence that the 1^st defendant did not tell the truth about the events of 25 July, nor about the events of 23 July.”

Use of the fact of silence

17.The applications filed on behalf of both the applicants allege that in relation to charge 2, the trial judge erred by drawing an inference adverse to applicants because they remained silent after arrest and caution.  We do not know why the ground thus drawn is restricted to charge 2 for, if the point is sound, it inevitably affects the safety of the convictions in relation to the first and fourth charges as well, since determination of those charges also depend heavily upon the credibility of D1.

18.The applicants rely on the proposition or rule set down in Lee Fuk Hing v HKSAR [2004] 7 HKCFAR 600 at 622 that:

“ … in consequence of this right [to silence], suspected persons in Hong Kong should be - and routinely are -  given a caution informing them in unqualified terms that they need not speak.  In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.”  (Emphasis added)

19.There will be circumstances in which silence prior to an arrest or to the administration of a caution may bear on the weight to be given to an explanation first offered at trial or first offered, as in this case, many weeks after the events in question.  So, for example, had the complainants in this case, K and her husband, not made a report to the police for some hours or some days, and had the applicants not been arrested and cautioned, a failure by the applicants on 25 July to report the alleged theft of valuable property would no doubt have told against an account given for the first time weeks later that they had been the victims of theft and assault.  Further, if despite the fact of arrest and the giving by the police of a caution, an arrested person chooses then and there, or soon after, to provide an account to the police which differs materially from the account proffered at trial, that difference may provide a permissible tool with which to undermine the credibility of either account.  But Lee Fuk Hing establishes that once a suspect is told of his right to remain silent, it is not permissible to use against him, either as evidence of guilt or in an assessment of his credibility, the fact that he remained silent and did not offer a, or the particular, defence until trial.  Whilst we understand the apparent common sense of the judge's approach in this particular instance, where the failure to report the loss of valuable property would appear to cry out for an explanation, and subject to the point considered in para. 20 below, we do not see a proper basis upon which to distinguish the present case from the situation contemplated by Lee Fuk Hing, assuming that there was in fact no explanation offered by the applicants after a caution was administered to each.

20.In this case, there was a stage at which a report was made to the police by someone other than K and her husband and we proceed on the assumption that it was a report made by D2.  That report was made at 8.59 p.m. on 25 July in the 999 call referred to in the admitted facts.  It is likely that it was made before D1 or D2 were arrested.  If it were the fact that the report made no reference to theft of goods, that would have been a fact that the judge would have been entitled to have taken into account in assessing the credibility of D1’s testimony.  According to the admitted facts, the police operator made the following entry as a result of the call:

“Inft E/Male ANI 91877151, spoke very fast in a louder, it’s hardly to catch inft said that location (might be) Fu Tai Est Mkt, Fuk Hang Tsuen.  Inft was seemed having a dispute/talk with someone around him.  No more details can be elicited from inft.”

21.We have seen that in relation to that record the judge said that: “It is clear that it did not include any information about burglary or robbery or things having been stolen…”.  Whether by ‘it’ the judge was referring to the caller’s report or to the record made by the recipient of the call is not clear.  Given the terms of the report, the absence of any evidence from the police operator, the problems which the police at the scene had in understanding either applicant, it is difficult to know whether or not theft was or was not mentioned.  The record said in terms that it was hard to catch what was being said and if the judge found that it was clear that the caller said nothing about burglary or robbery or theft, even if those very words were not used, that was not, in our judgment, a safe finding.  If, conversely, the judge thought that the caller may have mentioned theft or burglary, then that would undermine much of the adverse inference which he drew from subsequent silence.  In any event, what is clear is that the judge by no means restricted his credibility finding to the terms of this record but, as the passages we have cited illustrate, relied primarily on the silence of the applicants upon and after arrest.

22.We note that the defence case was not that the applicants had relied upon their right of silence but that D2 had told the police in terms when they arrived that things had been stolen.  Further, D1 said that when interviewed at the police station he tried to tell the police of the theft but was told that since he had been charged he should keep what he wanted to say until court.  The judge made no express findings about these defence suggestions as to what the police were told, although his rejection of them can safely be said to be implicit in his reasons for verdict.  Given the testimony of PC 473 concerning the difficulties in communication between him and D2, it would have been preferable for the judge to stipulate the basis for that rejection.  Although it is not entirely clear whether the judge found that explanations and protestations were offered by the applicants but that they differed materially from the defence at trial or whether, on the other hand, he found that after arrest and caution nothing at all was said by either of them, we think that the thrust of the judge’s reasoning suggests the latter.  That being so, the judge erred in utilizing their silence against the applicants.

23.We note from paragraph 42 of the Reasons for Verdict that D1 was cross-examined as to why at the police station "he made no mention of the fact of the burglary to the police.”  We have before us no record of any interview at the police station – nor has there been included in the appeal bundle the testimony of D1 - but Mr Leung, for the respondent, accepts that these questions ought not to have been asked and ought not to have been relied upon by the judge.  He invites us, however, to say that whilst there has been a material irregularity, the convictions should be upheld by application of the proviso to s. 83 of the Criminal Procedure Ordinance, Cap 221.

24.We do not think that this is an appropriate case for the application of that proviso.  It is obvious from a study of the Reasons for Verdict that the finding that the applicants made no contemporaneous or timely report of the burglary – an alleged event that was at the heart of their defence - played a central part in the judge's finding about the credibility of the defence case.  It is also apparent that his finding about the credibility of D1 in relation to the events of 25 July must have affected his finding in relation to the credibility of D1 concerning the events of 23 July.

25.Other grounds of appeal have been advanced but we have seen no merit in these.  Given our conclusion in relation to the first ground, which we have now analysed, it is unnecessary for us to say anything further about the other grounds.

Charges 1, 2 and 4 : Conclusion 

26.For the reasons we have provided, we grant the first applicant leave to appeal against conviction in relation to the first, second and fourth charges, treat the hearing of this application as the appeal, allow the appeal and quash those convictions.  We take the same course in relation to the second applicant’s application concerning the second charge: the conviction for that offence is also quashed.

27.We will hear counsel on the question of a retrial in relation to charges 1, 2 and 4.

The immigration charge

28.The third charge alleged that D2 “on the 25th day of July, 2007, having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration,” contrary to s. 38(1)(b) of the Immigration Ordinance, Cap 115.

29.This applicant first entered Hong Kong in June 2006 and the movement records of the Immigration Department show that on each occasion he was permitted to stay for 14 days, left Hong Kong at the end of each fourteen-day period and re-entered lawfully within a day or two of departure.  The last entry shows him depart Hong Kong at 5.16 p.m. on 24 October 2006 and there is no record of any return after that date.  Because he was found in Hong Kong in July 2007, the contention was that he must, on a date after 24 October 2006, have entered Hong Kong unlawfully and then remained here.

30.D2’s defence, as evidenced by answers he gave in the course of an interview with the police, was that he had not left Hong Kong since his last entry on 11 October 2006 and that it was not he who had departed on 24 October.  If correct, he had overstayed, which is not the offence with which he was charged and of which he was convicted.

31.D2’s account to the police was that someone in Hong Kong had undertaken to secure an extension of his visa unlawfully, for which expected service he had paid, but that, in any event, he had lost his passport not long after his last return to Hong Kong in October.  It was an admitted fact that on 1 November 2006 he made a report to the police that he had lost his passport at about 2pm on 24 October 2006 in the vicinity of Chung King Mansions.

32.There was found in his possession a forged letter purportedly from the Immigration Department dated 4 June 2007 which referred to a supposed application for an extension of stay, an application that had not in fact been made.

33.Of central relevance to the ground of appeal in relation to this conviction is s. 62(1) of the Immigration Ordinance:

“(1) For any of the purposes of this Ordinance, if a person who by virtue of section 7 may not land or remain in Hong Kong without the permission of an immigration officer or immigration assistant does not produce an identity card relating to himself when required to do so by an immigration officer, immigration assistant or police officer, such person shall be deemed, until the contrary is proved, to have landed in Hong Kong unlawfully."

34.The applicant is a person to whom that subsection relates.

35.It is apparent from the Reasons for Verdict that the judge, in coming to his conclusion on this charge, placed considerable emphasis on the failure of this applicant to produce an identity card when he was asked by PC 473 on 25 July 2007 whether he had any travel or identity documents.  In convicting the applicant of this charge, the judge relied upon five factors:

(1)  that entry into Hong Kong on 11 October 2006 and departure on 24 October 2006 by somebody using the applicant's name and travel document fitted the pattern of entries and exits in the movement records relating to the applicant and compiled by the Immigration Department;

(2)  possession by the applicant in July 2007 of a forged application for extension of stay;

(3)  the fact that “when PC 473 asked him on 25 July 2007 if he had any travel or identity documents, [D2] made no answer or response.  I am not overlooking the fact that the police officer did say that there were communication difficulties, though he did say that they were communicating by simple English”;

(4)  the applicant’s suggestion that he had paid $21,000 to a person who was not an immigration officer and who undertook to arrange for the extension of the applicant’s visa; and

(5)  the presumption raised by s. 62(1) of the Immigration Ordinance.

36.What troubles us are the third and fifth factors upon which the judge relied.  

37.The evidence-in-chief of PC473 was to the effect that communication with D2 was very difficult and that although "we continued to communicate with them with simple English but all along were not able to communicate."  The judge asked this witness a number of questions and there was the following exchange between the court and the witness:

“Q.  Was there any discussion with him about his immigration status?

A.   I had asked him whether he had any identity documents or any travel documents with him…   I had asked questions like that, but he never answered.

Q.   Yes.  But are you able to save from what you observed, did he appear to understand your question when you asked him if he had any travel or identity documents?  If you can't answer that, say so.

A.   I wasn't clear whether he understood it or not.

Q.   He simply made no response at all to your question? 

A.   That's right.”

38.Mr Ross, for the second applicant, contends that s. 62 does not come into play because, on any view, there was no request for the production of an identity card.  That, in our judgment, is an unrealistic contention on the facts of this case.  This applicant had resided in Hong Kong for some considerable time and his history shows full familiarity with what identity documents are required for those residing in Hong Kong and we are satisfied that in the circumstances the inquiry by the officer constituted a sufficient indication to the applicant that he was being asked to produce an identity card if he had one. 

39.Yet all this presupposes that the person asked understands the question.  We cannot think that the statutory provision contemplates that an offence is committed by somebody who does not comprehend the requirement.  In this case, there was much to suggest that the applicant may not have understood the question that had been posed and we think that in the circumstances it was inappropriate for the judge to rely on the statutory presumption or to take into account the third factor upon which he relied.

40.We have been invited again to apply the proviso to s. 83 of the Criminal Procedure Ordinance and, in this regard, Mr Leung emphasizes the remaining three points upon which the judge relied.

41.Given the possession of an admittedly forged immigration document, no weight can be placed upon the applicant’s credibility and therefore his story to the police about the circumstances in which he came to stay in Hong Kong after 11 October.  His report to the police that he lost his passport is in itself suspect.  Had he only discovered its loss a day or so before 1 November, there would have been nothing odd in a report then of its loss.  But this was a report that he had lost it at a specific time, namely, at 2 p.m. on 24 October.  If that were true he would have reported it, surely, on 24 October or soon thereafter.  In these circumstances, a report eight days later identifying the time of its loss as three hours before he was recorded as having left Hong Kong smacks purely of a reconstruction after the event, and of a report made after he had returned to Hong Kong by illicit means.  In addition, although there was no direct evidence of the terms upon which he was admitted into Hong Kong on 11 October, there is nothing to suggest a departure from the pattern that by that date had been well established, namely, that he had then been allowed to enter for only fourteen days.  In our judgment, there is but one sensible conclusion flowing from this, which does not depend upon answers he did or did not give to questions by the police, which is that he left Hong Kong on 24 October and entered unlawfully thereafter.  That renders his presence in Hong Kong on 25 July 2007 in breach of s. 38(1)(b) of the Immigration Ordinance.

42.Accordingly, in relation to charge 3, we grant the second applicant leave to appeal against conviction, treat the hearing of the application as the appeal but by application of the proviso to s. 83 of the Criminal Procedure Ordinance, we dismiss the appeal.

Mr Richard D Donald instructed by Messrs Jal N Karbhari & Co, assigned by Director of Legal Aid for the 1^st Applicant

Mr Philip Ross instructed by Messrs David Ravenscroft & Co, assigned by Director of Legal Aid for the 2^nd Applicant

Mr David Leung, SPP of the Department of Justice for the Respondent