HKSAR V.Ashrif Mehmood and Another
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DCCC1081/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1081 OF 2011 ----------------------
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--------------------- Reasons for Verdict --------------------- The defendants’ pleas of not guilty 1.The two defendants enter a plea of not guilty to one joint charge of doing acts tending and intended to pervert the course of public justice, preferred against them under the Common Law, punishable pursuant to section 101I(1) of the Criminal Procedure Ordinance, Cap. 221. Offence 2.It is alleged in the Particulars of Offence that on 6 May 2011, the defendants did a series of acts with intent to pervert the course of public justice, which acts did have the tendency to do so, in that they falsely represented to Hong Kong Police that –
The prosecution case The incident 3.At around 3.16 am on 6 May 2011, the 2nd defendant dialled ‘999’ and summoned two police officers PC34137 and PC34851 to a location near the Welcome Supermarket of Kam Tin Town. 4.When the officers arrived at about 3.41 am, the 2nd defendant spoke with them in Cantonese, saying his friend, namely, the 1st defendant, had been taken away in a van by seven Pakistani males, two of whom were armed with knives, at about 7 pm the previous evening. The 2nd defendant looked worried and agitated. 5.The 2nd defendant said further that a private car followed that van when it left the scene, but before the kidnappers went away, one of them told him to go to Yuen Long Police Station and withdraw a case of robbery and a case of common assault, otherwise they would harm the 1st defendant. 6.The 2nd defendant told the officers that he did not know what to do, so he discussed the matter with his clansmen and finally decided to make a report to the police. To PC34851, he reported he could recognize one of the kidnappers whom he had seen in a warehouse, and that he knew where the 1st defendant was taken; but he was unable to articulate the address. 7.The officers took the 2nd defendant to Pak Heung Police Station and had the matter reported to the Duty Officer. At the police station, the 2nd defendant was seen making numerous phone calls. Then he told PC34137 that his friends said the 1st defendant was probably taken to a warehouse (a storage yard, as it turned out) in Ha Che Tsuen. 8.The officers and the 2nd defendant went in a police car to Ha Che Tsuen. A group of persons of South Asian origin followed the police car there. When the officers and the 2nd defendant arrived, the South Asians scattered about to look for the victim. 9.At that location were several storage yards; open-air, iron hoardings marked their boundaries. PC34137 and the 2nd defendant peeped inside one of them but found nothing. The South Asians were making a lot of noises then; some shouted, others were agitated. 10.Then PC34137 heard someone say: ‘Come, come here!’ The group of South Asians appeared to have found the 1st defendant and were waiting for PC34137 at the entrance of another storage yard. (Evidence tendered in the trial showed that the iron hoardings of this open-air storage yard had several openings.) 11.The two officers and the 2nd defendant went over to that storage yard and together with the South Asians, they pushed open the door, at which time PC34137 heard no one shouting from the storage yard. Inside it was pitch-dark, the officer had to use a torch to find his way. 12.The photographs tendered by the prosecution showed the storage yard was a spacious one and that the officers and the group of South Asian persons who entered must have walked a fair distance before they found the 1st defendant lying on the ground at the back of the yard. 13.The 1st defendant was bound up with nylon strings. His mouth appeared to have been gagged with an adhesive tape, but when the officers saw him, at which time he was being assisted by others, the adhesive tape had been pulled down to his chin. 14.The 1st defendant spoke in a low voice. The 2nd defendant interpreted for him, telling the officers two kidnappers had assaulted him and had fled up the hill, and that his property had been stolen. PC34137 cut him loose. 15.While waiting for the arrival of other police officers, the 2nd defendant showed PC34137 a Report Slip with two criminal complaint numbers on it. The officer copied the two report numbers onto a piece of paper and later recorded the two numbers in his notebook before discarding the piece of paper. 16.The 1st defendant was sent to Pok Oi Hospital for medical attention. According to his medical report, the 1st defendant’s chief complaints were ‘chest pain and headache after being assaulted by strangers.’ 17.Medical examination revealed no bruises on his chest wall, no wound on his head, and no focal neurological signs; his chest was noted to be clear on auscultation. X-ray examination on the chest and cervical spine showed no fracture. The defendants took the police to Tai Nam Street 18.On the early afternoon of 6 May 2011, the two defendants took the police to Tai Nam Street, Sham Shui Po, in an attempt to locate a suspect Altaf Hussain. 19.The 2nd defendant directed the police to a shop at No. 262 Tai Nam Street only to find a Mr Choi working there; the suspect was nowhere in sight. Then the 2nd defendant took the police to the 1st floor, No. 272 Tai Nam Street, saying he had previously seen the suspect at that address; but no one answered the door. The 1st defendant’s statement 20.On the late afternoon of 6 May 2011, with the assistance of an interpreter, the 1st defendant gave a witness statement to the police in which he made complaint of being kidnapped in the following circumstances. 21.At about 7 pm on 5 May 2011, he and the 2nd defendant had walked past the junction of Kam Tin Road and Kong Tai Road, when a black private car, followed by a white van, pulled up beside them. Four Pakistani male persons alighted from the private car, two of them holding melon knives measuring a foot and a half long. 22.The armed ones were Altaf Hussain and Zahid Mahmood. Altaf Hussain placed the knife against the 1st defendant’s neck and forced him into the private car. One of the other abductors told the 2nd defendant to drop a case. 23.The 1st defendant knew that the 2nd defendant’s younger brother KHAN Nassar was the victim of a case of claiming to be a member of triad society and criminal intimidation. So he thought the abductors were probably referring to that case. 24.The 1st defendant was then blindfolded. The car travelled about 10 minutes, and then he was made to walk about three to four minutes to the storage yard. 25.There the abductors took away the piece of cloth used in blindfolding him, tied his hands and legs with nylon strings, covered his mouth with a piece of adhesive tape, and hit him in his back and the back of his neck 10-odd times while he was lying face down the ground. 26.Somebody took away his $2,000 and mobile phone. At the storage yard, he heard Altaf Hussain and Zahid Mahmood calling each other by their full names. 27.Later, he heard the 2nd defendant call out his name loudly and knew somebody had come to rescue him. He saw two abductors flee towards the back of the storage yard. And then, a police officer came over to cut off the nylon strings and tore away the adhesive tape over his mouth. 28.Apart from some red marks over the wrist and left forearm, he had suffered no injuries. 29.In his statement to the police, the 1st defendant said he had seen Altaf Hussain on the 1st floor of No. 272 Tai Nam Street, Sham Shui Po, and Zahid Mahmood in a shop dealing in used electrical appliances in Tai Nam Street. The 2nd defendant’s statement 30.On the evening of 6 May 2011, in the presence of another interpreter, the 2nd defendant was interviewed by the police for details of the case, which he provided as follows. 31.He and the 1st defendant had visited a friend in Pak Heung. They left the friend’s home at about 7 pm and walked to Kong Tai Road to take transport. 32.They were about to reach the junction between Kong Tai Road and Kam Tin Road when he saw a black private car and a white van parking at the bus stop (in the direction of Pak Heung). He and the 1st defendant kept walking forward. 33.When they reached the junction, the private car drove in front of them. Four Pakistani men alighted from the car and came over to the defendants; two of them were holding melon knives. 34.One of them (referred to in the 2nd defendant’s statement as male [1]) held the 1st defendant hostage with the knife, while the other armed men told the 2nd defendant to ‘cancel the report for that case,’ saying the 1st defendant would be released when the case was dropped, otherwise, the two defendants would be ‘chopped.’ 35.Then the abductors went away with the 1st defendant in the private car, the white van followed it. 36.The 2nd defendant went immediately to find some friends for help. He did not make a report to the police because he feared the abductors would harm the 1st defendant if he did so. But at last, a clansman persuaded him to make a report to the police. 37.In his statement to the police, the 2nd defendant said: ‘During the enquiries, the police asked me whether and when I had seen the four Pakistani males in the black private car. I remember I have seen male [1] at a [storage yard] in Ha Che Tsuen,’ as well as ‘in Tai Nam Street, Sham Shui Po.’ 38.The 2nd defendant continued in his statement that he took the police to a warehouse in Ha Che Tsuen and, together with other clansmen, called out the 1st defendant’s name. A police officer opened the metal door of the storage yard, shone a torch inside, and found the 1st defendant. 39.The 2nd defendant’s younger brother was KHAN Nassar. He was a victim in a case of claiming to be a member of triad society which occurred in the Yuen Long area. The 2nd defendant thought the abductors might be referring to that case when they asked him to drop a case. Iltaf Hussain 40.Mr Iltaf Hussain is married with a Hong Kong resident and has two children. He has been living in Hong Kong for the last 20 years. His mother tongue is Urdu. His business address is 1st floor, No. 272 Tai Nam Street, Sham Shui Po. 41.In early May 2011, Mr Iltaf Hussain attended the police station as a witness in a formal identification parade and made positive identification of a person. (This had led to a trial of two persons Asif Ali and Muntaz Ali at the District Court in December 2011, in which Mr Iltaf Hussain gave evidence for the prosecution.) 42.On the evening of 5 May 2011, Mr Iltaf Hussain and his employee were captured by a surveillance CCTV system to be in a residential block in Chak On Estate located between Shek Kip Mei and Kowloon Tong, demonstrating that Mr Iltaf Hussain could not possibly be anywhere near Pak Heung at the material time. 43.On 7 May 2011, Mr Iltaf Hussain received a telephone call with no caller display. The caller spoke Punjabi and claimed to be Ashraf, Ishraf, or Ushraf. He forbade Mr Iltaf Hussain from maintaining the criminal allegations against Asif Ali and Muntaz Ali, and told him to close that case, otherwise, there would be consequences. A case of kidnapping and robbery had been, the caller said, made against him. 44.Scared, Mr Iltaf Hussain called the police immediately. CCTV evidence 45.The CCTV system installed at Wing Tung Engineering Company captured the rear portion of a bus stop along Kam Tin Road – the bus stop mentioned by the two defendants in their statements to the police. 46.The footage showed that from time to time, buses would stop at the bus stop. The rear portion of the bus could be seen in the CCTV recording. 47.At the time of the alleged abduction, there was no unusual interruption of the flow of traffic at the bus stop, nor were a white van and a black private car seen travelling together into or past the bus stop. The defence case 48.The two defendants exercised their right not to give evidence and not to call any witness to their defence. Analysis (1) General consideration 49.The prosecution bear the onus of proof to satisfy the court beyond all reasonable doubt so that the court is sure of the defendants’ guilt, otherwise, they must be acquitted. 50.The defendants exercise their right not to give evidence; no adverse inference can be drawn against them. That said, there is no evidence before the court to rebut, explain, contradict, or undermine the prosecution evidence. (2) The charge 51.The prosecution open their case on the basis that the two defendants have staged a kidnap to frame up two potential witnesses in a criminal investigation, one of whom received a threatening call. However, the purpose of the staged kidnap is not particularized in the original charge. 52.In the recent Court of Final Appeal case of Winnie Lo v HKSAR FACC2/2011, Ribeiro PJ said in paragraphs 66 and 67 –
53.The prosecution in the instant case have opened their case on the purpose of the false kidnap and have always intended to prove it in evidence. It is likewise unsatisfactory if the purpose of the false abduction is omitted from the Particulars of Offence. 54.In view of the scope of the allegations revealed in the prosecution’s opening, the court considers the charge defective and allows the prosecution’s application to amend it to include the purpose in the Particulars of Offence. There is no conceivable prejudice to the defence; in this regard, the court notes that the defence does not object to the prosecution’s application. (3) Credibility and reliability of witnesses 55.By way of cross-examination, the defence raised mainly the following issues with the prosecution witnesses –
The witnesses denied these suggestions or allegations. 3(A) Items (1) and (2) 56.For items (1) and (2), PC34137 said in evidence that the 2nd defendant had shown him a criminal complaint report card on which were written the two RN numbers. He had the numbers copied on a piece of paper and must have, in the court’s view, returned the card to the 2nd defendant. He then made an entry in his notebook, discarded the paper, and took the 2nd defendant to Pak Heung Police Station. 57.In the court’s consideration, the officer cannot possibly lie about making the record at that early stage. His notebook entry would have shown he had done so. 58.In any event, the court cannot discern any possible motive for the officer to lie about this. At the relevant time, the officer considered the 2nd defendant an informant in a serious case of abduction, rather than a suspect of a crime. 3(B) Items (3) 59.As to item (3), the court notes that the 1st defendant said in his statement that when he and the 2nd defendant had walked past the junction of Kam Tin Road and Kong Tai Road, a black private car followed by a white van pulled up beside them. 60.On the other hand, the 2nd defendant told the police in his statement that when he was about to reach the junction between Kong Tai Road and Kam Tin Road, he saw a black private car and a white van parking at the bus stop (in the direction of Pak Heung); the private car drove in the front of them as they reached the junction. 61.On the afternoon of 6 May 2011, the two defendants took a team of police officers to the junction where the alleged kidnap took place. The police van was parked at the bus stop and the defendants and the officers stood next to it (see Exhibit P11(11) and (13)). 62.In light of what the defendants said in their statements, there can only be one reason for the investigation to be conducted on that side of the road: the junction was right ahead of the bus stop, and the white van and the black car must have driven past the bus stop on that side of the road to intercept the defendants at the junction. 63.The court notes a police officer gave evidence that there were altogether two CCTV systems installed at Wing Tung Engineering Company, and that one had to look at both of them to see the entire situation of the bus stop. 64.Nevertheless, the court is of the view that it is unnecessary for the footage of both CCTV systems to be tendered. The CCTV recording relied on by the prosecution is sufficient because, according to what the defendants said in their statements, if true, the van and the private car must have driven past the entrance of Wing Tung Engineering Company into the bus stop. 3(C) Items (4) 65.As to item (4), the court agrees with the defence that this CCTV recording does not take the prosecution case any further. The 1st defendant said in his statement that after he alighted from the car, he was made to walk three to four minutes to the storage yard. It would not have been surprising if the CCTV system installed near the entrance of the storage yard captured no vehicles approaching the entrance at the relevant time. 66.In cross-examination of the witnesses, the defence put other suggestions to them, for example, the 2nd defendant never mentioned Ha Che Tsuen during the incident; he never directed the police to the 1st floor, No. 272 Tai Nam Street; instead, the police had relied on information obtained from Mr Choi at No. 262 and took the defendants to No. 272; and the team of officers who took over the investigation of the case had been thoroughly briefed on the details of the case, including the RN numbers. The witnesses denied all these suggestions. 67.Having considered the entirety of evidence in this case, the court accepts the prosecution witnesses to be honest, truthful, and reliable. None of them was shaken under cross-examination. There is no material contradiction or inconsistency in their evidence. 68.In reaching this conclusion, the court has borne in mind the fact that when the officers investigated into this case, the two defendants were witnesses rather than suspects. The officers had no motive or reason whatsoever not to seriously and thoroughly investigate into this case of kidnapping. (4) The defence submission 69.Counsel for the 1st defendant submits that the incident bore the hallmarks of a genuine kidnap –
70.Even if the prosecution have been able to show and establish the falsity of the abduction (which is not accepted), counsel submits that there is no evidence to link the phone call Mr Iltaf Hussain received on 7 May 2011 with either of the two defendants. 71.In this regard, counsel mentions the fact that the kidnap was widely known in the Pakistani community at that time. And Iltaf Hussain gave evidence he had never seen either of the defendants in this case with Asif Ali or Muntaz Ali, the two defendants who were tried before the District Court in December 2011. 72.Counsel for the 2nd defendant argues that the evidence provided by the prosecution is consistent with a genuine kidnap, and that there is no linkage or association between the phone call Mr Iltaf Hussain received on 7 May 2011 and either of the defendants. 73.Further, it is submitted that Mr Iltaf Hussain called by the prosecution was certainly not the kidnapper the 1st or 2nd defendant had seen: the witness’s age and physical built do not tally with the descriptions given by the defendants in their statements of the knifed kidnapper. So the real abductor could have, it is argued, been an entirely different person who remains at large. After all, Altaf or Iltaf Hussain could have been a very common name among Pakistanis. 74.According to the defendants, Mr Altaf Hussain was the knifed kidnapper. Counsel for the 2nd defendant queries why Mr Iltaf Hussain was not arrested for investigation and instead, the police took a witness statement from him on 12 May 2011, at which stage, they had not secured the CCTV evidence showing him a long way away from Pak Heung at the material time. 75.Counsel for the 2nd defendant asks the court to consider the possibility the kidnap might have been staged by the 1st defendant alone and that the 2nd defendant had taken it to be a genuine one. (5) The court’s consideration 76.The court has given consideration to all the points raised by the defence. In view of the totality of evidence, the court rejects counsel’s submissions. 77.If the 2nd defendant was genuinely concerned about the safety of the 1st defendant who had been abducted at knife-point, there would be no conceivable explanation why he did not make a report to the police immediately. Hours had elapsed before he did so. He sought to explain that by saying he was scared and did not know what to do. The court finds this explanation inherently implausible and contrary to common sense. 78.According to PC34851, whose evidence is accepted by the court, the 2nd defendant said he had seen one of the abductors near a certain storage yard and that he knew where the 1st defendant had been taken. This shows clearly the 2nd defendant must have wanted to take the police to the storage yard there and then; being taken to the Pak Heung Police Station was not, in the court’s view, within the 2nd defendant’s contemplation at that time. 79.This piece of evidence shows that the 2nd defendant had always known where the 1st defendant had been taken. If he was genuinely worried and concerned about the 1st defendant’s safety, having sought help and assistance from his clansmen, one would wonder why he had not taken his countrymen to the storage yard, but waited so many hours before seeking help from the police. This is contrary to common sense. 80.The police did not have to conduct any investigation at all to find the 1st defendant’s whereabouts. According to PC34851’s evidence, when the 2nd defendant reported the matter to the police, he was in a position to take the police to the storage yard immediately. This is at odd with a genuine kidnap. 81.Having arrived at the storage yard, the South Asians discovered where the 1st defendant was in circumstances that defied logic and common sense. The storage yard was a huge one. The group of South Asians helped the officer open the door to gain entry. At that time the officer heard no shouting from inside the yard; in this regard, the court notes that the 1st defendant never said in his statement he had yelled out for help. The yard was so dark that the officer had to use a torch to move about. The 1st defendant was kept at the far end of it. In these circumstances, the court considers it impossible for the South Asians to have found the 1st defendant – without prior knowledge of where he was. 82.The 1st defendant said he heard the full names of the abductors when they spoke with each other during the incident. This is illogical. The abductors must have known each other; there was no conceivable reason why they needed to call each other by their full names, particularly, within the hearing of the 1st defendant. 83.Further, he said he had been assaulted by the abductors. His allegation is not supported by the medical findings. 84.After the police investigation at the junction between Kam Tin Road and Kong Tai Road, the defendants took the police to Tai Nam Street, Sham Shui Po, to locate Altaf Hussain. When they could not find him at No. 262, the 2nd defendant took the police to the 1st floor, No. 272, which was the business address of Mr Iltaf Hussain. In their statements to the police, both defendants said they had seen this person in Tai Nam Street before. 85.Evidence before the court shows that in the language of the defendants, names and surnames can have strikingly similar spelling and pronunciation. The court cannot accept it was a mere coincidence that the defendants set out to find a person called Altaf Hussain and they so happened to end up in premises belonging to a Mr Iltaf Hussain. 86.In their statements to the police, both defendants described the abductor Altaf Hussain to be 5’ 5” tall. But according to counsel for the 2nd defendant, Mr Iltaf Hussain who gave evidence before the court is significantly taller. It is submitted Altaf Hussain and Iltaf Hussain could be very common names among Pakistanis and that the Altaf Hussain the defendants had in mind could not have been Mr Iltaf Hussain. 87.The court rejects counsel’s submission in this regard. The court finds the truth is neither the 1st nor the 2nd defendant had seen Mr Iltaf Hussain before, so they had got his description wrong. The court finds that neither of them had anticipated that the police would ask them for a description of the abductor. The court’s conclusion is reinforced by Mr Iltaf Hussain’s evidence, which the court accepts as true and reliable, that he had never seen either of the two defendants prior to the court hearing. 88.The court finds proved beyond all reasonable doubt the defendants had wanted to find Mr Iltaf Hussain. This conclusion is strongly supported by the fact that Mr Iltaf Hussain was in fact the tenant of a storage yard near the yard where the 1st defendant was found. 89.Finally, the 2nd defendant had needed no one to tell him where the 1st defendant was; according to PC34851’s evidence, the 2nd defendent had always known that. In the court’s view, he made numerous phone calls at the police station to notify his confederates he had been taken, unexpectedly, to the police station rather than the storage yard at Ha Che Tsuen. 90.The court rejects counsel’s submissions that the abduction bore the hallmarks of and was consistent with a genuine kidnap. In the court’s view, the facts, acts and circumstances identified by counsel were what the defendants had to do to stage the criminal offence against Mr Iltaf Hussain. 91.Counsel for the 2nd defendant queries why Mr Iltaf Hussain was never arrested by the police, and why the police turned the investigation around against the defendants who were, to the knowledge of the police, the victim and informant of a case of kidnap. 92.The answer to these questions is obvious. Mr Iltaf Hussain made a report to the police of being improperly influenced as soon as he received the phone call on 7 May 2011. This must have been pivotal in the police inquiry, leading to a change in their direction of investigation. The court does not find it surprising at all that on 12 May 2011, the police decided to obtain a witness statement, rather than a cautioned statement, from Mr Iltaf Hussain. (6) Findings of facts 93.Ignoring, for present purposes, entirely the telephone call Mr Iltaf Hussain received on 7 May 2011, the court finds proved beyond all reasonable doubt that the defendants had staged the kidnap, the purpose of which was to get Mr Iltaf Hussain arrested for a false criminal allegation. 94.The conclusion of falsity of the abduction is reached independently of, but it turns out to be strongly supported by, the CCTV footage showing no white van and black car had travelled together into the bus stop at the material time. 95.While there is no evidence to link the call Mr Iltaf Hussain received on 7 May 2011 with either of the two defendants, the court attaches full weight to the telephone call and finds established beyond all reasonable doubt that the secondary purpose of the false abduction orchestrated by the defendants was to force Mr Iltaf Hussain to withdraw a criminal complaint to the police. 96.In view of the totality of evidence in this case, the court draws the only reasonable and irresistible inferences that the defendants were fully aware of the purposes of the false kidnap, namely, to have Mr Iltaf Hussain arrested, and to exert pressure on him to withdraw a criminal complaint to the police; the defendants had the intention to pervert the course of public justice; and what they did did have the tendency to do so. 97.In coming to this conclusion, the court has ignored all references to Zahid Mahmood, who did not give evidence in this trial. (7) Final matter 98.Before returning verdict, the court puts on record the following matter. The court acknowledges it is undesirable for the court to get involved in the parties’ discussion on Admitted Facts. However, in situation where the parties have reached a stalemate, the resolution of which would inevitably result in significant savings of court’s time, it is the court’s view that there is no rule or principle of law against the court providing the parties with assistance to enhance the efficient use of the court’s time. Order 99.All elements of the offence having been proved and established beyond reasonable doubt, the court finds the two defendants guilty as charged.
Please refer to CACC149/2012 for the relevant appeal(s) to the Court of Appeal. |
Cases cited in this judgment
Further hearings and rulings under DCCC 1081/2011