HKSAR v. KASHIF HUSSAIN

DCCC 395/2023

[2024] HKDC 1618

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 395 OF 2023

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

1.  The second defendant of this case was jointly charged with the first defendant for one count of acting as members of a triad society, contrary to section 20(2)  of the Societies Ordinance, Cap. 151 (charge 4). The second defendant pleaded not guilty to the charge.

Prosecution case

2.  An undercover operation was conducted between March and December 2017. Police officer PC 17841 Cheung Kwun Shing was deployed as an undercover agent in the operation. 

3.  Most of the prosecution case, such as the arrest and records of the video-recorded interviews (VRIs)  of the second defendant and the evidence of the triad expert, was not challenged.

4.  Officer Cheung was the only witness called to give evidence in the trial of the second defendant. 

5.  According to Officer Cheung, on 29.7.2017, he met up with someone nicknamed “Sai Shing”, who is the first defendant of this case, for collection of protection fee.  He and Sai Shing followed the same big brother in a triad society.  At about 10pm, he met up Sai Shing and a Pakistani male called “Marco” at a cyber café called J Net in Kwun Tong.  About half an hour later, another Pakistani male joined them.  Marco introduced this person as “Carson”. During the meeting there, Sai Shing gave them instructions about collecting protection fee at a shop called “Big Echo i-box store” in Causeway Bay.  Then, Sai Shing led them to leave the café and went to Causeway Bay.

6.  At Causeway Bay, they met the big brother “Ah Fai” outside the building at 38 Yiu Wah Street.  Ah Fai then gave them instructions about what to do at Big Echo.  Then the 4 of them said understood.

7.  Ah Fai left and the group of 4 then went to Big Echo.  Sai Shing spoke to the person-in-charge named “Apple”.  Sai Shing followed Ah Fai’s instructions and told Apple in a loud and fierce manner that the place would be watched over by “Wan Sun”, she had to call his boss for discussion or otherwise she had to bear the consequences.  Then Sai Shing gave a card to Apple.  During the incident, Officer Cheung, Marco and Carson were standing behind Sai Shing.

8.  Thereafter, they left Big Echo and went to a bar for drinks.  After about an hour, Marco and Carson left.  Subsequently, Officer Cheung and Sai Shing also left.

9.  Officer Cheung confirmed that it was the first time he met Carson on 29.7.2017 and he did not see him again thereafter until the identification parade on 24.1.2018.

Defence case

10.  After the prosecution closed his case, the defence submitted no case to answer.  After I ruled a case to answer, the second defendant elected not to give evidence nor call defence witnesses.  The defence case as disclosed from the second defendant’s VRIs is that he had never been to Big Echo and he did not know Ah Fai, Sai Shing and Officer Cheung.  He did know a Pakistani male “Marco” who was his schoolmate.

Directions

11.  Prosecution has the burden to prove the requisite elements of the offence beyond reasonable doubt.  The second defendant has no burden of proof.

12.  The second defendant elected not to give evidence nor call witnesses. This is his right.  I must not hold this against him.  On the other hand, it means there is no evidence from the defence to undermine, contradict or explain the evidence put before me by the prosecution. 

13.  The second defendant’s reply under caution was admitted as evidence. His reply is a mixed statement.  I have to consider what he said under caution.  If what he said is or may be true, then I must find him not guilty. Even if I reject what he said under caution, I still have to consider the prosecution’s evidence and decide if the offence has been proved beyond reasonable doubt.

14.  I remind myself that if I am to draw inference, the inference must be drawn from facts proved and that the inference is the only reasonable inference to be drawn from the proved facts. 

Analysis of evidence

15.  Mr. Percy for the prosecution has filed written closing submissions. While Mr. Percy did address on the relevant law in the closing submissions, he also addressed on the evidence.  As the second defendant has not given evidence nor called any witnesses and the evidence of Officer Cheung is straightforward, I consider Mr. Percy’s address on evidence could not be of further assistance to me.

16.  As I stated before, most of the prosecution case was not challenged. The defence did not challenge what had happened as testified by Officer Cheung and that the second defendant was picked out in an identification parade.  The only issues are whether the second defendant was the person “Carson” as mentioned by Officer Cheung and, if so, what the second defendant had done and whether those acts amounted to acting as member of a triad society. 

17.  Mr. Percy maintained there was no issue on identity as the second defendant had by admitted fact agreed that he was picked out by Officer Cheung at an identification parade.  However, I agree with Mr. Allan that the fact that the second defendant was picked out from an identification parade does not necessarily mean that he was “Carson” who was present on that occasion.  It was clearly stated in R v Turnbull [1977] QB 224 that an honest witness could be mistaken.  In a case like this, the burden is on the prosecution to prove beyond reasonable doubt that Officer Cheung’s identification was not mistaken. 

18.  While the evidence given by Officer Cheung is straightforward, there is no evidence from Officer Cheung regarding the quality of his observation of Carson.  There is no evidence on the lighting, their distance, whether the view was obstructed, the duration of observation, etc.  Apart from introducing each other’s name, Officer Cheung did not have any conversation with Carson. Officer Cheung also agreed that he only gave a brief description of Carson in his witness statement.  That description only consisted of the approximate age and height of Carson, that Carson was of fat built and he was believed to be a Pakistani.  There was no mention of Carson’s facial features and his clothes. Although the second defendant admitted knowing a Pakistani male called “Marco”, there is no evidence in this trial as to whether the Pakistani male Marco mentioned by Officer Cheung is the same Marco whom the second defendant knew. During the undercover operation, Officer Cheung met other suspects believed to be Pakistani.  Officer Cheung distinguished Carson from other Pakistani suspects for the fact that Carson was fatter than the others.  As Officer Cheung had not met Carson before and thereafter, the evidence in this case is simply insufficient to establish that Officer Cheung had sufficient opportunity to observe Carson.  In the circumstances, there is doubt as to whether Officer Cheung’s identification of the second defendant was mistaken.

19.  On the assumption that Officer Cheung’s identification was not mistaken, I have to consider what the second defendant had done and whether his conduct amounted to acting as member of a triad society.

20.  Regarding what Carson had done, Officer Cheung confirmed that he did not see Carson having any direct conversation with any person of their group.  The only conversation Officer Cheung was aware was Carson introduced his own name and said understood after Ah Fai had given instructions.  At Big Echo, Carson only stood behind Sai Shing without any action.  Later when the group had drinks at a bar, Officer Cheung did not mention any conversation by Carson. Then, Carson and Marco left first. 

21.  It is clear from Officer Cheung’s evidence that both Ah Fai and Sai Shing spoke in Punti in the incident.  Apart from Carson saying understood and introducing his own name, there is no evidence as to the language ability of Carson.  There is no evidence whether Carson could understand Punti and in particular the terms such as “protection fee”, “tor tei” and “Wan Sun” etc. The second defendant in his VRIs stated that he only spoke in Urdu, Punjabi and English.  In the circumstances, even if the second defendant was Carson and present at the time of the offence, there is no evidence to prove he understood Ah Fai’s instructions and what was going on thereafter.  Mere presence in the group is insufficient and there must be some overt act done by the second defendant which a triad does as a triad (see HKSAR v Wong Sing Chi and others, CACC 245/1999 at page 9). 

22.  Finally, as pointed out by Mr. Allan, there were discrepancies between the evidence of Ms Lau Lai Ping, the person-in-charge of Big Echo and that of Officer Cheung.  Ms Lau’s witness statement was admitted into evidence under section 65B of the Criminal Procedure Ordinance.  While both Ms Lau and Officer Cheung confirmed there were 2 incidents at Big Echo (i.e. on 27.7.2017 and 29.7.2017), Ms Lau’s version is that the same group of 6-7 males (including some South Asian(s))  went to Big Echo on both 2 occasions.  Officer Cheung testified that Carson only attended Big Echo on 29.7.2017 but not 27.7.2017.  While Ms Lau’s version is a group of 6-7 males, Officer Cheung’s version is a group of 4 persons.  Ms Lau said there was no mention of any triad affiliation and no act of coercion or money extortion on 29.7.2017 while Officer Cheung testified that Sai Shing mentioned the place would be watched over by “Wan Sun” on 29.7.2017. There is doubt as to which version is correct.

23.  In view of the above, I find the prosecution has not proved beyond reasonable doubt the charge against the second defendant.  I therefore find the second defendant not guilty of charge 4.