HKSAR v. Md, Emon Sha and Others

HCMA777/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 777 OF 2011

(ON APPEAL FROM KCCC NO. 3129 OF 2011)

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Before : Hon Saw J in Court

Date of Hearing : 28 March 2012

Date of Judgment : 28 March 2012

Date of Reasons for Judgment : 2 April 2012

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REASONS FOR JUDGMENT

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1.Each of the appellants was charged with two offences :

(I) offering to supply goods to which a false trademark was applied, an offence contrary to section 7(1)(a)(ii) and section 18(1) of the Trade Description’s Ordinance Cap. 362 Laws of Hong Kong charge 1; and

(II) establishing or joining in any business while being a person who remains in Hong Kong without the authority of the Director of Immigration having landed unlawfully, an offence contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance Cap 115 Laws of Hong Kong charge 2.

2.They were each convicted of both offences.  In the case of the “false trade description” charge they were charged jointly.  In the case of the “Immigration” charge they were charged separately.

3.They were each sentenced to be imprisoned for 2 months on the “false trade description” charge and to be imprisoned for 21 months on the “Immigration” charge.  The sentences were ordered to be concurrent.

4.On 28 March 2012 I allowed the appeals of each of the appellants on both charges.  I quashed the convictions and set aside the sentences I said then that I would hand down my reasons in due course.  These are my reasons.

Background

5.The appellants are all Bangladeshi nationals. It was admitted in their trial that each arrived illegally in Hong Kong and were at various times arrested and then released on an Immigration Department recognizance. At the time of their release they had been informed that they were not permitted to take up any employment.

The Prosecution’s case

6.The appellants were arrested together on 9 August 2011.  It was the prosecution’s case that they were on that day operating a business of selling watches to which a false trade description had been applied or put more simply were selling “copy watches” to the public on the pavement outside the Dior boutique in Peking Road Tsim Sha Tsui.

7.The prosecution’s case was straight forward.  An expatriate police officer (“PW1”) posing as a tourist was part of a larger undercover operation.  It was his evidence that as he strolled past the Dior boutique in Peking Road he was approached by a male who offered to sell him “copy watches”.  This was the 1^st appellant who then took from his left wrist a watch which on the face of it appeared to be a Montblanc brand.  The 1^st appellant offered to show PW1 other watches and when this offer was accepted he signaled to two other males who joined them.  Those were the 2^nd and 3^rd appellants.  Each showed PW1 a watch that he was wearing one purported to be a Panerai brand and the other purported to be a Cartier brand.  In the case of each of the appellants the officer’s evidence was that they removed the watches from their writs for him to examine.  There was negotiation and it was PW1’s evidence that the three appellants eventually agreed to sell all three watches to him for $2,000.

8.PW1 said that after further discussion he gave a pre-arranged signal to the other police officers concealed nearby.  The appellants were arrested.  The three watches were seized.

9.It was an admitted fact that each watch namely the Montblanc, Panerai and Cartier had applied to it a false trade description — they were not genuine watches of that brand.  They were “copy watches”.

The Defence case

10.The 1^st appellant gave evidence.  The 2^nd and 3^rd appellants did not.  It was the 1^st appellant’s evidence that on 9 August 2011 he was chatting with the 2^nd and 3^rd appellants outside the Dior boutique.  They were approached by police officers in plain clothes who demanded to see their identity papers.  Whilst he was producing his, one officer saw the watch on his left wrist and asked him where he got it, he replied in Mongkok.  That officer then asked him to take it off, he refused, the officer forcibly removed it from his wrist and then arrested him and the 2^nd and 3^rd appellants.

11.The 1^st appellant told the magistrate that his right hand including the palm and fingers had been amputated in 2004 and that on the day of his arrest he had been wearing a plastic hollow prosthesis covered by a glove.  That prosthetic hand had no movement in the fingers, therefore he was unable to buckle or unbuckle a watch strap as had been described by PW1; He could only wear or remove his watch with the assistance of his wife.

12.He said that he hadn’t offered to sell his watch to PW1, nor did the 2^nd and 3^rd appellants. His watch was purchased by him in Mongkok 2-3 months before for $2,000.

The appeals

13.The matter for the magistrate to determine was whether PW1 was a witness of truth.  If he was then in the light of the admitted facts it was clear that all three appellants were attempting to sell to PW1 “copy watches”.  If what the 1^st appellant said was true or may have been true then it was incumbent upon the magistrate to acquit the three appellants.

14.The magistrate concluded that PW1 was a witness of truth and that the 1^st appellant was not.  It was the reasoning by which he reached that conclusion that required me to allow the appeals of all three appellants.

15.How then did the magistrate determine that PW1 was a witness of truth.  This is what he said :

“8. D1 [the 1^st appellant] gave evidence, his clear record advanced his credibility and propensity. I found that D1 did not tell me the truth. His testimony was unreasonable and unbelievable. I rejected his evidence on the area which was challenged by the prosecution.”

There was a footnote to these observations.  This is what is recorded in the footnote :

“(i) The unusual of D1 wearing a glove on his right hand was make known to the officers at an early stage, if it was a conspiracy as such, the officers could and would have avoided the easy anticipated issue rising out from the artificial hand.

(ii) Difficult to imagine an experienced officer like PW1 would take the brainless high risk of that obvious, framing up an innocent in such an open, with total disregard that could been seen or even captured by the security cameras installed by the nearby shops.”

16.There were a number of matters of concern in this process of reasoning.  The first matter was that nowhere in the evidence of PW1 or in the submissions is there a reference to security cameras installed in the nearby shops.  It appears that the magistrate had assumed there were, and used that assumption as part of the foundation for his conclusion that PW1 — wouldn’t be so “brainless” as to fabricate evidence against the appellants.  The magistrate was here speculating and that speculation forms part of his reasoning for finding that PW1 was a witness of truth and the 1^st appellant was not.  This is not permissible the magistrate is bound to make any such finding on the evidence.  This however is not the end of the matter.

17.The magistrate has concluded that PW1 would not fabricate evidence because he was an experienced police officer, again not a permissible basis for accepting his evidence over that of the 1^st appellant.

18.In the first part of the footnote the magistrate appears to be saying that because PW1 knew at an early stage the appellant had a prosthetic hand therefore would have tailored his evidence to counteract any suggestion by the defence that he could not have removed the watch from his wrist and then put it back on again.  This may be so but there was a major conflict in the evidence of PW1 and the unchallenged evidence of the 1^st appellant.

19.The matter arose in the following way.  There was no mention by PW1 of this infirmity in his evidence in chief.  In cross-examination he had described the 1^st appellant manipulating the fingers of the prosthetic right hand when placing the watch on his left wrist.  There was unchallenged evidence from the 1^st appellant that the fingers of his prosthetic hand were rigid and immobile.  This was a conflict never resolved by the magistrate.

20.In a footnote to his Statement of Findings the magistrate said this :

“The artificial hand was made by hard materials, when insert the watch strap into the space between 2 fingers, slightly rotate the fake hand would create a grabbing pulling force to the strap, like a slightly rotate fork can left up spaghetti.”

21.This is not the description given by PW1 when he was asked to demonstrate how the 1^st appellant removed and replaced the watch.

22.The transcript of this part of PW1’s evidence reads P.64M :

“Q : How did he unbuckle that Montblanc watch P1 on his left wrist?

A : Using his right hand to unbuckle it.  It wasn’t very tight.”

23.He estimated that this did not take very long — around 10-20 seconds.

24.He was asked this :

“Q : Can you demonstrate how the defendant, D1, take it off with his right gloved hand?

A: Well, I’ve got a full set of fingers, so you still want me to do it with my hand — it’s going to be different.”

25.He was asked to put the watch onto his own wrist and demonstrate how it was that the 1^st appellant removed and then replaced the watch.

26.It was after this demonstration that the following appears :

“Q :I put it to you that the fake right palm with fingers is made of hard plastic. It’s hollow. It’s made of hard plastic.

A : I don’t know.

Q : And you — and that D1 cannot move his fingers as you have demonstrated.

A : I disagree.

and later

Q :I put it to you that D1’s fake fingers had no mobility and he cannot put on the watch as you have demonstrated in court today.

A :”I disagree.”

27.Not only does the magistrate not reconcile the conflict in the evidence he appears to have embarked on a frolic of his own in determining just how it was possible for the 1^st appellant  to do as PW1 said he did.  This reasoning was not supported by the evidence and again appears to be speculation on the part of the magistrate.

28.These convictions were unsafe and unsatisfactory and were quashed.

29.Mr Ross who appeared for all three appellants advised me that in the lower court they were represented by legal practitioners privately engaged.  He applied for an order for costs. I granted that application and ordered that the costs of each appellant in the lower court be paid by the respondent.  The amount of costs to be taxed in default of agreement.

Ms Christal Chan, SPP of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Messrs CMK Lawyers, assigned by the Director of Legal Aid, for the Appellants on conviction only

The appellants in person on sentence