HKSAR v. BINOD, THAPA CHHETRI

HCMA 169/2021

[2021] HKCFI 2201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 169 OF 2021

(ON APPEAL FROM TMCC 9 OF 2021)

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REASONS FOR JUDGMENT

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1.  The appellant, a Form 8 Holder was convicted on 23 March 2021 after trial[1] by a magistrate[2] on one count of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151 (“the charge”). On the same day, the magistrate sentenced the appellant to 8 months’ imprisonment.

2.  On 21 June 2021, I dismissed the appellant’s appeal and now hand down my reasons.

Prosecution Case

3.  The prosecution case was that on 23 August 2017, inside Tsun Wai Games Centre, Shop 6-7, G/F Nan Tin Mansion, 31-41 Kau Yuk Road, Yuen Long (“the Games Centre”), the appellant claimed to be a member of a triad society, namely 14K.

4.  In the course of an undercover operation to collect intelligence of triad activities in entertain venues between June and September 2017 a police officer who adopted the nickname Ah Kin (PW1) met another person called “Tak”.

5.  At around 2150 hours on the 23 August 2017, PW1 was waiting for Tak outside the Games Centre.  Approximately 5 minutes later Tak arrived with the appellant.  Tak introduced the appellant to PW1 as his friend.

6.  The trio entered the Games Centre and there Tak further introduced the appellant to PW1 as Bino.  Tak said that the appellant lived in Yuen Long and wanted PW1 to introduce Danny to him.

7.  Whilst the appellant was playing games in the Games Centre, Tak and PW1 watched him play.

8.  At about 2225 hours PW1 asked Tak, “what did the appellant know to do?”, Tak replied, “He is also of Number. It’s right that you should find him for fighting.”  The appellant then added “If there is a fight just find me.  Tak and I are both of 14.”  PW1, Tak and the appellant communicated with each other in Cantonese.

9.  After about 10 minutes, Tak and the appellant left the Games Centre.  From the time PW1 first saw the appellant until the time the appellant left the Games Centre it was about 40 minutes.

10.  At about 1938 hours on 2 September 2017, PW1 returned to the Games Centre and found the appellant sitting there.  It was the second time PW1 met the appellant.  He informed DPC 6323 [PW2] over the phone to arrest the appellant.

11.  On the 15 November 2017, PW1 positively identified the appellant in an identity parade.

Defence Case

12.  The appellant elected to give evidence.  He said he had forgotten where Tak introduced PW1 to him but it was probably in the Games Centre.  He said he could not recognise PW1.  He said that he was unable and did not communicate with PW1 as he did not speak Cantonese.  The appellant denied he said what PW1 alleged.  He did not know anything about 14 and did not remember where he was on the material night due to the long lapse of time.

13.  The appellant came to Hong Kong from Nepal on the 6 September 2009.  He married an Indonesian in Hong Kong.  He was able to speak Nepalese, Indonesian and English.  He learned Nepalese and English in school in Nepal.  He learnt Indonesian after meeting his wife.

Issues at Trial

14.  The issues at trial were PW1’s credibility and whether PW1 correctly identified the appellant.

Magistrate’s Findings

15.  The magistrate set out an analysis of the evidence at paras 12-18 in her Statement of Findings.  She found the defendant’s evidence was unworthy of belief.  She found PW1 to be a credible witness.  After bearing in mind the guidelines on identification in Turnbull she found that PW1 had correctly identified the appellant.  She found on all the evidence that the prosecution had proved its case beyond reasonable doubt.[3]

Grounds of Appeal

16.  The appellant relied on the general Grounds of Appeal in Form 101[4]. In his oral submissions, the appellant repeated his evidence at trial that he does not speak Cantonese and could not have not have communicated with PW1 as claimed.  He further complained that Tak whom he knew as Manoj was not called to give evidence.  He averred that Tak could have proved his innocence.

17.  The appellant claimed that there were CCTV’s installed at the Games Centre.  He said the recorded footage would show that he did not talk to PW1.  He complained that no visual CCTV footage had been provided to him by the prosecution but he was only provided with was 40 minutes of footage which had a low audio.

Respondents Submissions

18.  In reply to the appellant’s oral submissions, Counsel for the Respondent, Mr Prakash L Daryanani SPP stated that the prosecution had never seized any CCTV footage from the Games Centre and therefore no CCTV footage visual or audio was ever provided to the defence.  Mr Daryanani submitted that the defendant could have called Tak in the trial, Tak was not a prosecution witness.

19.  As to the appellant’s submission that he does not speak Chinese, Mr Daryanani submitted that this was an issue of credibility specifically upon which the magistrate found against him.

DISCUSSION

20.  Regarding the claim of CCTV footage.  There is no evidence that there were any CCTV recording or footage of the night in question.  There was no CCTV footage or audio recording submitted into evidence at the trial and the magistrate made no reference to any CCTV in her Statement of Findings.  I find the appellant’s contention that there was audio footage provided to him by the prosecution to be incomprehensible.

21.  On the ground that Tak was not called to give evidence at the trial, the appellant was legally represented at his trial.  It was open to him, the defence, to call Tak as a defence witness.  There is no merit in this ground.

22.  Regarding the question of the appellant’s ability to speak Cantonese, after careful consideration the magistrate rejected his claim. The magistrate referred to the appellant’s evidence where he said that about 10-15 days before his arrest PW1 had invited him to a bar to drink free beer.  Under cross examination however the appellant changed his evidence to say it was Tak who invited him to the bar.  The magistrate found that the appellant changed his evidence to avoid the embarrassment that the appellant knew how to speak Cantonese[5].

23.  In addition on the question of the appellant’s language abilities, the magistrate stated[6]:

“…he has lived in Hong Kong for almost 8 years on the material day. He picked up Indonesian because he married a wife here. He could speak Urdu and English. Court actually finds he is gifted in learning languages and yet when it comes to Cantonese, he used all sorts of excuse to explain why he couldn’t speak it. He describes himself as having minimal contact with locals and when it comes to buying daily necessity he kept his mouth shut and let his wife spoke. It’s absurd. Court finds him evasive, trying to paint a picture that there was no possible way for him to have had a conversation with PW1 in punti.”

24.  In paragraph 17 the magistrate’s findings she concluded:-

“Although he denied ever having the material conversation, Court is satisfied beyond all reasonable doubt that he did.  Court finds he did said: “If there is a fight just find me.  Tak and I are both of 14” in response to Tak’s saying that he was of Number.  Defendant being in Hong Kong for so long, Court has no difficulty or hesitation to find he knew Tak was referring to 14, the triad society, when he said he was of Number.  14 or 14K is an active triad society in Hong Kong.  The triad expert’s statement (P4A) has been admitted into evidence by consent and according to it, 14 is also known as Number.  Court finds defendant’s evidence is unworthy of belief.”

25.  This was a case where the prosecution case depended wholly on the correctness of the identification of the appellant by PW1 and his credibility.  I see no reason to interfere with the magistrate’s findings.

Conclusion

26.  The magistrate was fully entitled to have convicted the appellant on the evidence.  The conviction is neither unsafe or unsatisfactory. For the above reasons, I dismissed the appeal.