HKSAR v. Mohammed Khan Shamim

DCCC1113/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1113 OF 2011

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Reasons for Verdict

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1.The defendant in this case has pleaded not guilty to the second charge on the indictment of possession of arms without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238, Laws of Hong Kong. He has admitted the first charge on the indictment, that being an offence of possession of dangerous drugs.

2.The prosecution quite simply allege that on 19 May 2011 a party of police led by Chief Inspector Ian Cowieson gained entry to the defendant’s premises at Room No. 2, Flat 6, 17th Floor, Block D, Chungking Mansions, Tsim Sha Tsui, Kowloon, where they found the defendant and his wife. They executed a search warrant and, amongst other things, found a stun gun, Exhibit P12, which was contained in a red plastic bag, P11, which itself was in a plastic box, Exhibit P10. 

3.Under caution, the defendant remained silent but the following day during a video recorded interview the defendant stated that he found it about 2 years ago in a dust bin in the vicinity of Chungking Mansions and he thought that it was a battery charger.

4.The defendant in evidence for his part denied possession of the stun gun, effectively alleging that the police had framed him and set him up.

5.With regard to the contents of the video recorded interview, the defendant maintained that he had been coached as to what to say by the chief inspector prior to the video interview and had been subjected to violence by the police at the time of the raid in his premises the day before. 

6.Aside therefore from determining the admissibility of the video recorded interview by way of voir dire proceedings adopting the special procedure, the only issue that fell for the determination of the court was whether or not the defendant was indeed in possession of the stun gun as alleged by the prosecution.

7.Prior to the calling of any oral testimony, a set of agreed facts, Exhibit P5, were produced dealing with formal matters not in dispute.  These were produced pursuant to section 65C of the Criminal Procedure Ordinance, Cap.221, Laws of Hong Kong.

8.All of the prosecution witnesses who testified, testified in relation to both issues, that is the general issue and special issue of admissibility.  They were all officers from Regional Crime Unit T1, Kowloon West, led by Chief Inspector Cowieson, who was PW1. 

9.He testified that on 19 May 2011 he led his team to the premises in question around 2228 hours that evening.  When they arrived outside the door to Room 2 he said he instructed one of his officers, DSPC7176, who was PW4, to knock on the door, which he said he did and at the same time shouting “Police, open the door.”  He said he could hear voices inside so after about 30 seconds he said he instructed 7176 to break in, which he said 7176 did by kicking the door open.  Upon entry, he said he saw the defendant sitting on the bed and his wife sitting close to him on a stool.  Next to the bed on a table he said he immediately saw a bottle with two straws, a small transparent packet containing a crystalline substance and a large pellet of cannabis resin. 

10.He testified that he showed the defendant and his wife a search warrant, Exhibit P6, and he instructed another officer, DSPC51286, who was PW3, to search the premises.  After about 15 minutes the drugs being the subject matter of Charge 1 were found, but additionally, he said, that from inside a plastic transparent box placed on the windowsill underneath the air-conditioner a red plastic bag was found inside which was the stun gun. 

11.PW1 said that both the defendant and his wife were arrested in Cantonese by 46135, who was PW2, and he, that is PW1, told them in English that they both had been arrested for possession of dangerous drugs and possession of the stun gun.  He said they gave no reply.

12.The following day the chief inspector said he saw the defendant during the video recorded interview which was conducted by PW2 and PW3 as he monitored it from an adjacent room.  After the video recorded interview was concluded he said he gave the defendant his name card.

13.Amongst other things PW1 accepted in cross-examination that prior to the raid, crime information they had received suggested that both drugs and the stun gun could possibly be found in these premises. 

14.It was put to this officer as well as other officers who testified that there was never any knock on the door prior to the police breaking in.  This was consistently denied by all officers.

15.All of the particulars of alleged mistreatment by the police party to both the defendant and his wife were put to PW1 and other officers who testified and all were denied.  These included the allegation that once the party gained entry to the premises 51286 shouted, “I am police, I am police”, and struck the defendant’s left shoulder with a baton and handcuffed the defendant without declaring arrest.  Similarly put and similarly denied was the allegation that PW4 and PW5, SDPs 7176 and 33906 respectively, went straight towards the window and after this witness returned to the room having received a phone call, he went up to these officers, said something to them, as a result of which PW4 opened the window, stretched out his hand and retrieved from outside a red plastic bag containing the stun gun.

16.Further allegations of violence were denied and PW1 strenuously denied the specific allegation put to him that he told the defendant that the stun gun was his and if he admitted it his wife would be released, otherwise she would be charged.  He also denied telling the defendant that if he provided the “Big Fish” for dangerous drugs then he could be released from the case.

17.The allegation that the chief inspector prior to the video interview instructed the defendant what to say otherwise his wife would be charged was also denied.

18.PW2 was, as I have said, DSPC46135, the officer who arrested the defendant at the premises on 19 May 2011 pursuant to the search and he was also the officer who conducted the VRI with the defendant the following day, on 20 May. 

19.He confirmed the evidence of PW1 regarding the events during the course of the search and immediately prior to gaining entry to the premises.  He said he was guarding the defendant during the course of the search by PW3, DSPC51286, and he witnessed PW3 finding the red plastic bag containing the stun gun.  He said he saw the officer taking out the stun gun from the plastic bag.  He said he asked him about the stun gun in Punti and the defendant gave some response in his own language.  He was unable to say what the defendant had said as he said there was some communication problems.  He said he arrested the defendant in Punti but did not caution him at that stage as there was no interpreter available.  He confirmed that the chief inspector had repeated the arrest to the defendant in English.

20.Whilst inside the premises the witness said that the defendant was not handcuffed.  It was not until he escorted the defendant back to Tsim Sha Tsui Police Station at 0050 hours that the defendant was handcuffed.

21.At the police station he said he gave the defendant a Notice to Persons in Custody in the Indian language, Exhibit P7, and then later on in the afternoon of the same day, the 20th, he conducted the video interview on the defendant.

22.He, as did PW1 and the other members of the team who testified, denied the allegations put to him regarding the finding of the stun gun at the scene and denied that the defendant was the subject of any threats prior to the taking of the video recorded interview.  He agreed that the chief inspector did come into the room after the interview finished and gave the defendant something but he denied that he was with him for about half an hour, saying that it was less than one minute.

23.PW3 was indeed DSPC51286 and he was the officer who searched the premises once the team had gained entry.  He said that he searched next to the bed in the premises and from the windowsill under the air-conditioner he said he found a plastic box inside which was a red plastic bag containing what he suspected to be a stun gun.  He also testified as to finding the suspected drugs in the premises. 

24.Allegations that he assaulted the defendant upon gaining entry to the premises were rejected by this witness, and he and the remaining witnesses of any relevance, that is PWs 4 and 5, DSPC 7176 and DPC33906, completely rejected the allegation that the stun gun was not found as described by this witness but somehow retrieved by 7176 by stretching his arm out of the window beside the bed.

25.After hearing all the evidence on both issues led by the prosecution and the defendant’s account on the special issue, I ruled as admissible the disc of the video recording itself, which was Exhibit P9.  The transcript of the recording and the certified translation thereof were both admitted as Exhibits P9A and P9B respectively.

26.As I have already said, during the course of the video interview the defendant admitted possession of the implement but said that he did not know that it was a stun gun, saying he found it in the rubbish bin in the vicinity of Chungking Mansions and picked it up thinking that it was a battery charger.

27.That completed the case for the prosecution, and as is his right, the defendant elected to give evidence.  In evidence, the defendant adopted the testimony that he had given in the voir dire and said that at around 10.30 pm on 19 May 2011 when he was having dinner with his wife the police broke into his premises.  He said in the course of the voir dire that he did not hear any knock on the door, neither did he hear anyone shout, “Police, open the door.”  One of the officers, he said PW3, DSPC51286, hit him on his upper arm with a baton and immediately handcuffed him from behind. 

28.He testified that two officers, who he identified as PW4 and PW5, went over to the window to search.  He said the chief inspector, PW1, went outside to take a phone call, returned after two minutes and said something to the two officers in Cantonese, then, he said, that PW4 opened the window and brought in a red coloured packet from outside. They took out the gun and said, “This is yours”, to which the defendant said that he told them it was not his and they, the police, had just brought it in from outside.  He was never shown the stun gun and he said he was further assaulted by PW2 and PW4.  That completed the case for the defendant.

29.As I identified at the outset of this ruling, the single issue for the determination of this court is whether or not the defendant was at the material time in possession of the stun gun.  In determining this issue, the credibility or otherwise of the prosecution witnesses on the one hand and the defendant on the other is crucial.

30.For my part, whilst I was obviously conscious of every prosecution witness being a police officer, I, notwithstanding this, found each of them to be good witnesses and witnesses of truth.  There were some minor discrepancies in the details of their evidence but I found such discrepancies that did exist did not detract from their general credibility. In short, I believed them.

31.I single out particularly Chief Inspector Cowieson who I found to be a first-class witness and a witness who I found I could thoroughly rely on.  I saw nothing at all out of the ordinary or sinister for this witness to give the defendant a copy of his name card immediately after the taking of the video interview, and I accepted the chief inspector’s explanation, that this indeed is one of the ways in which the police receive crime information.  If one looks at the contents of the video recorded interview itself, taking into account that the chief inspector was monitoring it from an adjoining room, the provision of his name card is quite logical, bearing in mind that the defendant himself had told the interviewing officers that he had a lot of crime information and could help the police.

32.Regarding the contents of the video interview itself, whilst I found it to have been given perfectly voluntarily by the defendant, I do not accept his answers to questions put to him regarding the stun gun as being truthful; in particular, I do not accept as being truthful the defendant’s statement that he picked it up in a dustbin thinking that it was a battery charger.  This flies in the face of common sense.

33.As far as the defendant’s evidence is concerned, I reject it in its entirety as being nothing more than lies.  I specifically reject the allegations that he has made against the police in the course of the voir dire and I also reject entirely his account of being framed by the police.  I can see no reason whatsoever for the police to frame him in the way that he suggests.

34.Having found as I have and for the avoidance of any doubt, I say that I find as a fact and I am satisfied beyond all reasonable doubt that Exhibit P12 was found in precisely the way PW3, that is DSPC51286, said he found it, inside a plastic box on the windowsill underneath the air-conditioner.

35.The premises in question where Exhibit P12 was found are by all accounts, and by reference to Exhibit P4, the book of photographs and Photo 7 in particular, extremely small and were occupied by the defendant.  I draw the irresistible inference that as a result the defendant must have known of the presence of Exhibit P12.  It was under his control and thereby in his possession.  There being no issue that Exhibit P12 is a stun gun, I find that I am satisfied beyond reasonable doubt that the defendant was in possession of the stun gun at the material time.

36.Pursuant to section 24(2) of the Firearms and Ammunition Ordinance, Cap.238, Laws of Hong Kong, any person who is proved to have arms, a stun gun being defined as arms, in their possession shall until the contrary is proved be presumed to have known of the nature of such arms.  I have rejected the suggestion by the defendant made during the course of the video interview that he thought Exhibit P12 to be a battery charger as being untrue. 

37.I therefore say that I am satisfied the prosecution have proved this charge against the defendant beyond all reasonable doubt and I convict him accordingly.

Please refer to CACC269/2012 for the relevant appeal(s) to the Court of Appeal.