HKSAR v. Mohomed Rahoof Mohomed Sajahan

HCMA 270/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 270 OF 2014

(ON APPEAL FROM TMCC 1084 of 2013)

___________________

___________________

________________

D E C I S I O N

________________

Introduction

1.On 8 April 2014, the applicant was convicted after trial by Deputy Magistrate Hui Chun Sing of one charge of using a false instrument, contrary to s 73 of the Crimes Ordinance, Cap 200 (Charge 1) and another charge of attempting to mislead a police officer, contrary to s 64(b) of the Police Force Ordinance, Cap 232 (Charge 2).  The Magistrate sentenced the applicant to concurrent terms of imprisonment of 21 months on Charge 1 and 6 weeks on Charge 2.  The applicant has appealed against his conviction and sentence.  He now applies for bail pending appeal.

Bail pending appeal

2.A court will address the issue of bail pending appeal by asking the preliminary question whether the appeal has a strong likelihood of success and if it does, then to go on to consider matters relevant to whether or not to grant bail and if so whether it should be with or without conditions additional to the requirements for the applicant to surrender to the court as appointed.  In this context, the phrases “strong prospect of success”, “highly likely to succeed” or “strong likelihood of success” provides the threshold that needs to be satisfied in order to consider granting bail to an applicant.[1] I prefer the phrase “strong likelihood of success” but in my view all these phrases seek to impose on an applicant a high threshold which is satisfied by showing that the appeal has a very good chance of success.  The court will not only consider the strength of the appeal, but also the likelihood that all or a substantial part of the sentence will be served before the disposal of the appeal.  The granting of bail pending appeal on the ground of time served will depend on the merits of the appeal and will only be made when it is just to do so.  It has been held that with respect to this ground, it also needs to be shown that the appeal is at least reasonably arguable[2] or promising[3].

3.It should be understood that a magistracy appeal is a rehearing on the papers and the court on an application for bail pending an appeal against conviction will address the preliminary questions of the strength of the appeal and the time served by asking itself as to the former whether there is a strong likelihood that the court will not be satisfied beyond reasonable doubt of the guilt of the appellant of the charge or charges for which he or she was convicted, being the subject of the appeal, and as to the latter whether there is a risk that the sentence imposed on the applicant or a substantial part of it would have been served by the time the appeal is heard and the appeal is reasonably arguable in the sense that the court will not be satisfied beyond reasonable doubt of the guilt of the appellant of the charge or charges for which he or she was convicted, being the subject of the appeal. A similar approach would be taken in relation to an application for bail pending an appeal against sentence, but the questions would be directed to whether the court would set aside the sentence and the consequences that that would have on the sentence being served. In such circumstances, I can see that the respective grounds of strength of the appeal and time served may be more closely interrelated.

Brief facts

4.The brief facts of this case were as follows.  The applicant was stopped by a police officer on 27 March 2013 in Lau Fu Shan Main Street and when he was asked to produce his identification document he produced a Recognizance in the name of Thabseer Mohamed Farhan.  This is commonly referred to as a Form 8 which is usually issued to a person who has entered Hong Kong illegally but seeks asylum and is released on a Recognizance on condition he does not work while his claim is being processed.  The photograph on the Recognizance did not match the appearance of the applicant.  When asked about this by the police officer in English, he replied in English that the photograph was taken when he was young.  He was then told that Farhan was a wanted person to which the applicant responded by stating that the paper was not his and that his paper was at home.  He was then arrested for Charge 2 of knowingly attempting to mislead a police officer.  He was taken to Tin Shui Wai police station.  He later took the police to a residence in Kam Tin to obtain his identification document. Before entering the residence, he told the police that his name was “Mohamed Naseer Mohamed Asmi”.  A Recognizance in the name of Mohamed Naseer Mohamed Asmi was retrieved from the residence. There was an issue at trial as to whether the police located the Recognizance or it was produced by the applicant. Back at the police station it was noticed that the upper right corner of the photograph of this document was damaged and after lifting the photograph another photograph was found underneath it.  When asked about this, the applicant said in English “I copy this paper, this paper not me.”  He then gave to the police what appears to be his correct name.  He was arrested for Charge 1 of using a false instrument.  The applicant was cautioned and he responded by stating that his paper was lost and he was sorry and that he did not report the matter to the Immigration Department so he made a fake document.

Magistrate’s findings

5.The Magistrate accepted the prosecution evidence and rejected the defence case.  In his comprehensive Statement of Findings, he made the following findings:

“ a. At Lau Fu Shan:

i. when PW1 asked the defendant to produced his identification, the defendant showed Exhibit P1 to PW1;

ii. Exhibit P1 was a Recognizance issued to Thabseer Mohamed Farhan;

iii. the defendant told PW1 that the photograph on Exhibit P1 was taken when he was young;

iv. after PW1 told the defendant that Farhan was a ‘wanted person’, the defendant admitted to PW1 that Exhibit P1 did not belong to him;

b. in Kam Tin,

i. the defendant told PW1 his name was ‘Mohamed Naseer Mohamed Asmi’;

ii. after being reminded by PW1 for his identification document, the defendant took out Exhibit P2 from a drawer inside Thaariq’s house and showed it to PW1;

iii. Exhibit P2 is a forged Recognizance;

c. In Tin Shui Wai police station, the defendant admitted to PW1 that he copied and made Exhibit P2.”

Appeal against conviction

6.Issue was taken at trial in relation to the admission made by applicant after being cautioned in relation to Charge 1.  It was complained that the caution was administered in Cantonese and was not understood by the applicant.  The Magistrate found that the caution was not administered properly, but nevertheless determined that the statement was voluntary and admissible.  Under the first ground of appeal, it is complained that the Magistrate failed to properly assess the evidence of the defence in relation to an alleged assault by one of the police officers on the defendant.  This was addressed and considered by the Magistrate.  Notwithstanding the admission made by the applicant after caution, the Magistrate had the evidence of the applicant’s previous statements and conduct where he produces or relies on two identification documents that were not his, and one of which was false. 

7.The second ground of appeal concerns a complaint that the Magistrate failed to address the elements of the offence involving the double intention of Charge 1 of first inducing a person to accept a document as genuine and, secondly, somebody acted or omitted to act to his own or someone else’s prejudice by reason of so accepting it.  This was the subject of closing submissions to the Magistrate and based on his findings he was satisfied as to the elements of the offence and in any event it would be open to the appellate court to address this matter by way of rehearing.

8.The third ground of appeal is the Magistrate failed to give any or any proper reasons for accepting the testimony of the prosecution witnesses and rejecting the testimony of the defence witnesses.  The Magistrate from his statement of findings sets out a detailed analysis of the evidence and his findings of fact, which together with the record provide the reasons and basis for why he rejected the evidence of the defence witnesses.  See HKSAR v Okafor [2012] 1 HKC 427.

9.The final ground of appeal is that the conviction is both unsafe and unsatisfactory.  I have difficulty with such a ground being a basis of quashing the conviction when a magistracy appeal is a rehearing. It matters not in this sense whether the conviction imposed by the Magistrate was unsafe or unsatisfactory as it is the function of an appellate court hearing a magistracy appeal to conduct a rehearing in order to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant. Accordingly, such a ground has no relevance to the ultimate function of the appellate court of making its own decision as to the guilt or otherwise of the appellant in relation to the charge or charges the subject of the appeal.

10.I do not find for the purpose of this application that there is a strong likelihood of success for the appeal against conviction.

Appeal against sentence

11.The applicant also appeals against the sentence imposed on him by the Magistrate.  Mr Mark Sutherland, for the applicant, in submissions relied on the case of HKSAR v Chan Man Ho, HCMA 1059/1999.  However, this case was addressed and corrected by the Court of Appeal in HKSAR v Li Chang Li, HCMA 935/2004 (English translation) where it was held that for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment and if the offender produced such identity card in order to conceal his identity to work illegally or unlawfully further his stay in Hong Kong, the starting point upon a plea of guilty should ordinarily be 15 months’ imprisonment. 

12.Mr Sutherland also relies on the case of HKSAR v Usman Butt [2010] 5 HKLRD 452 which is a decision of the Court of Appeal dealing with sentencing for immigration offences relating to a torture and asylum claimant working illegally.  The Court confirmed that the sentence of 15 months’ imprisonment on a plea of guilty for an offence under s 38AA of the Immigration Ordinance, Cap 115, was required to be applied although the court did recognise that other factors may warrant a substantial discount.  I strongly associate myself with the Court’s sentiments that a genuine torture or refugee claimant deserves sympathy and humanitarian assistance.  The Court noted, however, that humanitarian assistance is provided to a claimant and this removes the need to seek employment pending the determination of his claim.  The Magistrate in this instance took into account the circumstances of the case and sought guidance from the sentencing cases where a defendant produces a false identity card to a police officer when stopped by the police.  He took as a starting point after trial a sentence of 21 months’ imprisonment. 

13.It is complained by Mr Sutherland that the Magistrate did not cite any sentencing cases.  The point is whether there is a strong likelihood that the sentence would be overturned and substantially reduced on appeal given the circumstances of the case.  Producing a false identity document to the police upon inquiry is a serious matter.  What is strange about this case is that if the applicant had explained to the police that he had lost his Recognizance, the police would have made inquiry and confirmed his status here in Hong Kong, which in all likelihood would have brought the matter to a close.  But it is odd that he should have someone else’s Recognizance as well as another one which is a forgery and had his photograph on it.  I do not find for the purpose of this application that there is a strong likelihood of success in disturbing the sentence imposed by a substantial reduction given the nature of the offence and the relevant sentencing principles.

Time served

14.I have found that the applicant has failed to satisfy me that the appeal against conviction and sentence has a strong likelihood of success and the issue of time served does not arise as the applicant was sentenced to 21 months’ imprisonment on 8 April 2014, having previously been remanded in custody for these offences from 27 March to 14 May 2013.  It would appear that his appeal is likely to be heard within 2 to 3 months and the sentence imposed on him or a substantial part of it would not have been served by the time the appeal is heard. 

Conclusion

15.In light of the foregoing, the application for bail pending appeal is refused.

16.In coming to this decision, I have been greatly assisted by the comprehensive and well researched submissions of Mr Nicholas Wong, Senior Public Prosecutor.

Mr Nicholas Wong, Senior Public Prosecutor, of the Department of Justice, for the respondent

Mr Mark RC Sutherland and Mr Robert Tibbo (on 2 July 2014 only), counsel for the applicant (assigned by the Hong Kong Bar Association Bar Free Legal Service Scheme)

[1] R v Lee Hoi Kwong, CACC 229/1992, [1993] HKCU 402; R v Oscar Lai Ka To, CACC 229/1992 [1994] HKLY 261; HKSAR v Huynh Bat Muoi, CACC 28/2000; HKSAR v Fan Ying-chao, CACC528/2000.

[2] HKSAR v Chan Chi Chiu Louis, CACC 249/2012, [2012] HKCU 1928; HKSAR v Kulemesin Yuriy, CACC 19/2010, [2010] HKCU 455; HKSAR v Lau Man Kin [2010] 3 HKC 309.

[3] R v Lee Hoi Kwong, CACC 229/1992, [1993] HKCU 402.