HKSAR v. REHMAN EHTISHAM UR

HCMA 345/2019

[2020] HKCFI 2842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 345 OF 2019

(ON APPEAL FROM ESCC NO 446 OF 2019)

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J U D G M E N T

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1.  The appellant was acquitted after trial before a magistrate of one charge of one charge of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177.

2.  After the acquittal, the appellant applied for costs which was refused by the magistrate.  Against the refusal order, the appellant now appeals.

3.  At trial, the appellant was represented by Richard Donald of counsel.  Here, he is represented by another counsel who adopted the Perfected Grounds of Appeal and written submissions both under the hand of Mr Donald.  On both occasions, the instructing solicitors are the same.

PERFECTED GROUNDS OF APPEAL

4.  The Perfected Grounds of Appeal was drafted in a strange way and resembled more a set of written submissions.  It is unclear from the document what is/are the ground(s) of appeal.

5.  At the hearing, counsel for the appellant told me that there really were 5 grounds of appeal.  They are:

(1)     The magistrate failed to take into account relevant considerations;

(2)     The magistrate took into account irrelevant considerations;

(3)     Possession of a false instrument itself could not support an only irresistible inference (of guilt);

(4)     The magistrate punished the appellant for an uncharged offence; and

(5)     The appellant had [not] brought suspicions upon himself and the magistrate exercised his discretion wrongly to refuse to compensate the appellant for his costs.

PROSECUTION AND DEFENCE CASES IN BRIEF

6.  Police constable PW1 stopped and searched the appellant on suspicion for an unrelated offence.  When asked to produce his ID card, the appellant said he had left it at home and showed only a driving licence.  In P1 (probably the appellant’s wallet), PW1 found P2 (the subject ID card copy).  PW1 examined P2 and found it to lack any security features.  PW1 declared arrest on the appellant for the present offence.

7.  The appellant elected to give evidence.  He worked as a food delivery man.  He said P2 was made in a photocopying shop in Pakistan which he would use there when he hired a car or obtained a SIM card; that he feared of losing the original which would be difficult to replace while he was there; that such practice was common in Pakistan; when he was back in Hong Kong, he forgot to take it out from P1; he had no intention to use it in Hong Kong.

MY CONSIDERATION

On Ground 1

8.  The appellant submitted that there are some relevant considerations that the magistrate had failed to take into account. They include:

(a)     The appellant was a HK resident;

(b)     The appellant had a clear record;

(c)     The appellant had the original of the ID at home;

(d)     The appellant was co-operative at the time of the arrest;

(e)     It was quickly determined the card was not genuine;

(f)     The poor quality of the false ID card; and

(g)     The lack of discernable motive or benefit for the appellant to forge his own ID.

9.  It is clear from the transcript of the trial proceedings that above points (a), (b), (d) and (e) were laid emphasis on by trial counsel in his application for costs (AB36T to 37D).  Point (c) was mentioned by the magistrate in the Reasons for Ruling on Costs.  It is obvious that that magistrate must have taken these factors into account.

10.  As regards point (f), let us see what the expert says under cross-examination as described in para 18 of the Reasons for Ruling on Costs:

“18. Under cross-examination, PW2 said that although she could easily determine from the poor quality of P2 that it was not authentic, she could not go so far as to say no one would be deceived into thinking that P2 was genuine. However, PW2 agreed that if the person had awareness of the security features in genuine identity cards, he/she might be able to tell that P2 was not genuine.”

11.  And for someone who is supposed to have had training on detection, PW1 said when he first saw P2, “he thought it was genuine and if he was not able to see it clearly from close range he would have thought it was genuine.” (Reasons for Ruling on Costs para 12)

12.  Point (f) has no merit.

13.  As regards point (g), the appellant relied on part of para 56 of the Reasons for Ruling on Costs.  However, the full para 56 and the paragraph immediately before it (para 55) are as follows:

“55. the Defendant testified that he had no intention of using P2 in Hong Kong and he was carrying D2 on the day when he was intercepted by PW1 only because he had forgotten to take it out of P1 after coming back to Hong Kong. I had likewise considered this evidence and fount it at least possible to be true.

56. The Defendant was born in Hong Kong and owned a valid Hong Kong identity card, in the context of this explanation given by the Defendant, I simply could not fathom what motive he would have or what benefit he could get by possessing or using P2 in Hong Kong. This, coupled with his evidence about how P2 was placed in the same compartment in P1 underneath his driving license and identity card (which I could not rule out as possible to be true), led me to conclude that his explanation as to why P2 was inside P1 when he was intercepted by PW1 to be at least possible to be true.” (my emphasis on appeal)

14.  The underlined part was the only part relied on by appellate counsel.  It is clear from the reading of the whole of paras 55 & 56 that when the magistrate made the underlined comment, he was strongly influenced by the appellant’s explanation given for the first time at trial.

15.  The appellant submitted that the exercise of the right to silence should not bring suspicion upon the appellant.  The submission was not entirely correct.  In the context of costs, sometimes it does.  In any event, it plays a part in the exercise of discretion in the determination of whether costs should be granted to an acquitted defendant.

16.  In R v Lau Tsz On [2017] 3 HKLRD 243, Barnes J had the following observations:

“17. I agree entirely with what Andrew Cheung J, as he then was, held in Cheng Kam Kuen v HKSAR (unrep., HCAL 92/2004, [2005] HKEC 738, 17 May 2005), ([27]-[33] of the judgment) to be the principle of the matters a court has to take into account when dealing with applications for costs following an acquittal where a defendant exercised his right to remain silent, refused or failed to disclose his defence or proferred an explanation at the investigation stage or failed to disclose his defence before the trial ……

18. Put simply, the overall conclusion A Cheung J reached after considering and analyzing the Hong Kong and Australian authorities was when considering the question of costs, it did not mean the court could not take into account the refusal or failure to disclose one’s defence before the trial or proffer the explanation at the investigation stage, done in the exercise of the right of silence. The court should, while not depriving the defendant of his right of silence, make assessment on the facts of each case to decide if the defendant should be paid costs out of the public revenue.

19. What I have to consider and decide is, in so far as the facts of the present case and all the circumstances relevant to it are concerned, applying the aforesaid legal principles, whether I should exercise discretion not to award full costs to the appellant?”

17.  I respectfully agree with those observations of Barnes J.

18.  Point (g) likewise has no merit.

19.  Ground 1 fails.

On Ground 2

20.  The irrelevant considerations that the appellant had in mind which he says the magistrate wrongly took into account were that P2 was a false instrument and its possibility to cause prejudice; and the prosecution’s prima facie case absent the appellant’s explanation.

21.  Although the finding of a prima facie case does not automatically lead to a refusal of costs to an acquitted defendant, it could do so under the right circumstances.  Here, the magistrate expressly found that P2 was a false instrument and that, had the appellant not given evidence, he would certainly have convicted the appellant after drawing an irresistible inference that the double intention required for conviction existed.  These are clearly relevant considerations because it highlighted the fact that it was the appellant’s explanations that saved him from an otherwise certain conviction in the present case.  However, it was the appellant’s free choice to “save the best for last”.  In the result, the trial could not be avoided.

22.  As regards the appellant’s argument on right to silence, see my considerations on Ground 1.

23.  Ground 2 accordingly fails.

On Ground 3

24.  While the appellant is correct in saying that possession of a false instrument itself/alone could not support an only inference of guilt, under the right circumstances it can.  Here, one must remember that the false instrument in question is a false (though not forged) HKID card and one could do a lot of things with a genuine HKID card.  The appellant’s argument is related to the submission that no prejudice could be caused by P2.  In my judgment, the magistrate was correct to say that the appellant completely ignored the provisions of section 70(1)(f) which states “(1) ……, an act or omission intended to be induced is to a person’s prejudice if, and only if, it is one which, if it occurs, will- … (f) be the result of his having accepted a false instrument as genuine, ……, in connection with his performance of any duty”.

25.  In the absence of any explanations from the appellant, had he not given evidence, there would have been a strong inference that he would use it (otherwise why would he carry only P2 without also carrying his genuine ID card?) to induce somebody to accept it as genuine and by reason of so accepting it to do or not to do some act to any other person’s prejudice.  The magistrate was entitled to regard it as the only irresistible inference which entitlement I will not interfere with.

26.  Ground 3 fails.

On Ground 4

27.  The magistrate did mention another offence, namely the offence of possession of a false instrument under section 75 of the Crimes Ordinance, Cap 200, on his way to acquit the appellant of the present offence (para 61 of the Reasons for Ruling on Costs) and after the acquittal by way of post-script (AB35H-36E).  However, both occasions were before the magistrate proceeded to hear or gave reasons for the costs application/determination.

28.  The allegation that the magistrate punished the appellant for an uncharged offence has no basis whatsoever.

29.  Ground 4 fails.

On Ground 5

30.  This is a summary ground.  The appellant has failed on all preceding grounds.  I cannot see how the magistrate had erred by concluding that the appellant had brought suspicions upon himself or how he had wrongly exercised his discretion in refusing costs.  Ground 5 likewise fails.

CONCLUSION

31.  For the aforesaid reasons, the appeal against refusal of trial costs must be dismissed.  I confirm the order of refusal.