HKSAR v. Kashif, Butt

HCMA 214/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 214 OF 2013

(ON APPEAL FROM KCCC NO. 5370 OF 2012)

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REASONS FOR JUDGMENT

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1.The appellant appeared before a magistrate sitting at Fanling on 22 February 2013 and was convicted after trial of ‘knowingly attempting to mislead a police officer’ contrary to section 64(b) of the Police Force Ordinance, Cap 232 and section 159G of the Crimes Ordinance, Cap 200 Laws of Hong Kong, the particulars being that he on 29 December 2012 at Shop 85, 1st Floor, Chungking Shopping Arcade, 36-44 Nathan Road attempted to mislead a police officer by giving false information, namely that he was the holder of the copy of Form No. 8 Recognizance in the name of Muhammad bilal @ Bilal Muhammad S/N: A0195904. He was sentenced to a term of 14 days’ imprisonment.

2.On 4 March 2013, the appellant filed a Notice of Appeal against his conviction on the general ground that the conviction was against the weight of evidence, certain evidence was improperly admitted or rejected, and there was no or insufficient evidence to found the conviction.

3.In a letter to the Court of Appeal and the Director of Legal Aid dated 1 March 2013, the appellant indicated that he had never pleaded guilty and he only knew that the lawyer had pleaded guilty on his behalf after being informed of this by a staff member of the Correctional Services Department.  He also indicated that he had never admitted that he had committed such an offence.

4.On 25 April 2013, the appellant appeared in person before me where amongst other things he complained that he was not feeling well at the time the cautioned interview took place at the police station, he was hungry at the time and did not eat Chinese food, and also that he did not speak or understand urdu, he only spoke Punjabi.

5.I dismissed the appeal and indicated I would hand down my reason for doing so at a later stage.  I do so now.

6.At trial, the prosecution relied on the testimony of two witnesses, namely, a police officer and an urdu interpreter.  The police officer was the officer who intercepted the appellant at the scene, asked for his identity documents which resulted in the appellant producing to him a copy of Form 8, serial no. A0195904 in the name of Muhammad bilal @ Bilal Muhammad indicating that it was his.  PW2 was the urdu interpreter who assisted the appellant in the taking of a record of interview.

7.The admissibility of the oral admission made by the appellant at the scene and the record of interview was challenged.  The appellant elected not to testify in the special issue, and the learned magistrate as he was entitled to, ruled both the verbal at the scene and the record of interview to be admissible.

8.On the general issue the appellant who was represented, elected not to testify or to call witnesses.

9.Despite some inconsistencies in the evidence of PW1 which the learned magistrate found to be “not material”, the learned magistrate found both PW1 and PW2 to be honest and reliable witnesses and he accepted their evidence in their entirety.  In particular with regard to the urdu interpreter PW2, the learned magistrate found that she faithfully and accurately interpreted what was said when a record of interview was taken from the appellant.  It is significant that the learned magistrate referred to the fact that PW2 confirmed that the appellant wrote urdu on the record of interview.

10.This appeal I found to be devoid of any merit whatsoever.  With the evidence of the police officer coupled with the record of interview, the learned magistrate had ample evidence with which to convict the appellant.  I confirmed this conviction and dismissed the appeal against conviction.

Ms Denise Chan SPP, of the Department of Justice, for the respondent

The appellant appeared in person