HKSAR v. Liaqut Ali Khan

HCMA 278/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 278 OF 2009

(ON APPEAL FROM STCC 963/2009)

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BETWEEN

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Before: Deputy High Court Judge Geiser in Court

Date of Hearing:  21 October 2009

Date of Judgment:  26 November 2009

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J U D G M E N T

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1.The Appellant appeared on 18 March 2009 before a Magistrate sitting at Shatin Magistracy and was convicted after trial of two charges, those being transferring an identity card to another person, contrary to Section 7AA(1)(a) of the Registration of Persons Ordinance, Cap. 177, Laws of Hong Kong and transferring to another without reasonable excuse a travel document, contrary to Section 42(2)(a)(ii) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong. In respect of each charge, the Appellant was sentenced to a term of 18 months imprisonment which was ordered to run concurrently.

2.On 9 April 2009, the Appellant filed Notices of Appeal against Conviction and Sentence on the general grounds that the convictions were against the weight of evidence and the sentences imposed were too severe.

3.Perfected Grounds of Appeal were filed on the Appellant’s behalf on 29 June 2009 setting out a single ground of appeal against conviction, that being that the learned Magistrate erred in allowing the Appellant to be identified in the dock in the absence of the prosecution giving good reasons why a formal identification parade was not conducted.

4.The evidence for the prosecution came mainly from PW1, a Mr Gurinder Singh. He had been arrested for overstaying and was given bail on 4 July 2008. Two days later, PW1’s friend, Zain, told him that arrangements could be made for PW1 to leave for Canada. He told him he could arrange a passport for $60,000 and a driving licence for $20,000. PW1 agreed, but insisted that all the documents be in his name and genuine.

5.On 15 July 2008, Zain took PW1 to meet his friend, Ali, in Mongkok, and together, the three of them took a bus to the airport. At the airport, after Ali checked in and got the boarding pass, he gave the relevant documents to Zain who in turn passed them to PW1 for $80,000. PW1 passed through immigration, but was intercepted by the airline staff when they checked his identification prior to boarding.

6.Later, when PW1 was being questioned by officials, he saw the photograph on the passport which was given to him and he realised that the documents belonged to Ali, the same person who had accompanied him to the airport. In the trial in the court below PW1 identified the Appellant as Ali.

7.There was no dispute in the court below, indeed it was included in the admitted facts that the Appellant was the rightful holder of the passport and the identity card in question.

8.The Appellant elected to give evidence in the court below and testified that he did not go to the airport with PW1 on the day in question, nor did he know Zain. He said that a few days earlier he had both his identity card and passport with him but had lost them as he had become quite drunk. He said that he had reported the loss to the police on 15 July 2008.

9.Whilst it is clear from the Statement of Findings that the learned Magistrate believed the evidence of PW1 on the one hand and found the testimony of the Appellant to be untruthful, she was also alive to the fact that the main issue was one of identification. She warned herself of the special need for caution.

10.Despite the objection from defence counsel in the court below as to a “dock identification”, the learned Magistrate allowed it and detailed in her Statement of Findings the evidence that PW1 had given which related to identification in order to justify it. I can do no better than to recount it:-

“The evidence on identification was that on the material date, PW1 and Zain went to meet Ali at the Mongkok MTR Station … at the time PW1 stood face to face with the Appellant about 5 to 6 feet apart.  The three men then walked to the bus stop, they stood abreast, and PW1 saw the right side of the Appellant’s face at a close distance.”

“On the bus, they were all sitting on the front row ... Ali bent forward, turning to look at Zain during their chatting, and at that time PW1 could see the front of his face.”

“At the airport ... the three of them were standing in a circle chatting, with Ali about 2½ feet from Singh.  Lighting was clear.”

11.The learned Magistrate then went on to note that PW1 was with the Appellant on the day in question from 12 noon until about 2:05 p.m. apart from a period of about 30 minutes. She also noted that when PW1 was intercepted and looked at the photograph in the passport and recognised Ali as being the man who had transferred the documents to him, that this was a “spontaneous recognition”.

12.In my judgment, in the circumstances that presented itself before the learned Magistrate, the learned Magistrate was quite entitled to allow a dock identification despite the absence of any formal identification parade. The sole ground of appeal fails, I dismiss the appeal and confirm the conviction on both charges.

13.Regarding sentence, despite the Appellant being a first time offender, a period of 18 months imprisonment on each of these charges cannot be said to be in any way manifestly excessive. In the present case, not only did the Appellant transfer his passport and identity card to another, he took the extra step of checking in for the flight at the airport for the person who was going to use these documents. He was therefore clearly aware of the use that these documents were to be put and to the international element involved. The appeal against the sentences imposed is similarly dismissed.

Ms K W Yu, Margaret, Public Prosecutor, of the Department of Justice, for the Respondent

Mr Sherry Anthony James, instructed by Messrs Lo, Wong & Tsui, assigned by Legal Aid Department, for the Appellant for the appeal against conviction only

The Appellant, in person, for the appeal against sentence