HKSAR v. UMER-FAROOQ

CACC 194/2025

[2025] HKCA 1042

On appeal from [2025] HKDC 816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 194 OF 2025

(ON APPEAL FROM DCCC NO 160 OF 2024)

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J U D G M E N T

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1.  This is an application for leave to appeal against conviction.

2.  The applicant (D2 at trial) was convicted, together with Brar Harvir Singh (D1 at trial) and Kulvir Singh (D3 at trial), of a joint enterprise to pervert the course of public justice by falsely representing to the police on 28 July 2023 that D1 was the driver of a vehicle involved in an accident outside Justice Place, when in fact the driver was D3.

3.  D1 and D3 pleaded guilty to the perverting charge, while the applicant proceeded to trial.  The case against the applicant was based on admitted facts.  The applicant did not present any evidence in contesting the charge.

4.  When the accident occurred, the applicant and another person referred to as “X” were passengers in the vehicle.  After the accident, all three occupants of the vehicle left the scene.  D1 and D3 are brothers.  Later, a meeting took place in a carpark in Hung Hom, at which D1, D3, the applicant, and X were present.  Before the meeting, D1 changed into D3’s clothing.  D1 and the applicant then returned to the vicinity of the accident.  The applicant directed D1 to the location of the accident, and then left.  D1 approached the police at the scene and represented to them that he was the driver of the vehicle.

5.  It was primarily on these brief facts that the judge found that the applicant to be a party to the joint enterprise to pervert the course of public justice.  The applicant was not present when D1 made the false representation to the police that he was the driver of the vehicle.

6.  The judge’s findings against the applicant are set out in the following paragraphs of her reasons for verdict:

“25. I am of the view that prior to leaving from Hung Hom to Central with the 1^st Defendant, the 2^nd Defendant must have known that the 1^st Defendant was wearing the clothing that the 3^rd Defendant had worn at the time of the accident. I am also satisfied that armed with that knowledge, the 2^nd Defendant’s decision to remain in the Carpark during the conversation of certain persons in the group which included the 1^st to 3^rd Defendants and X, and to board a taxi with the 1^st Defendant shortly after the 1^st and 3^rd Defendants came to the carpark together, was the result of a common purpose, agreement or understanding with the 1^st and 3^rd Defendants, that the 1^st Defendant shall approach the Scene and claim to be the driver at the time of the accident, and that the 2^nd Defendant’s role was to accompany the 1^st Defendant on the taxi and to a location in the vicinity of the Scene, so as to guide the 1^st Defendant who had not been present at the accident. The 3^rd Defendant’s role was to lay low and avoid attending the Scene, as can be demonstrated by not boarding the taxi back to Central, and not being at his residence when the police arrived later that day, and leaving the Vehicle’s key at his home.

26. The Court is of the view that the fact that the 2^nd Defendant was walking behind the 1^st Defendant does not negate from the above conclusion, as one could guide by means other than walking in front. The fact that the 2^nd Defendant kept talking on the phone along the way when he and the 1^st Defendant were walking towards the direction of the Scene, combined with the other facts not in dispute, indicate a certainty that he was not wandering around, and that the route of his walking had a sense of purpose, the purpose of guiding the 1^st Defendant to the vicinity of the Scene.

27. The Court is also of the view that by alighting in the vicinity but not yet on the street of the Scene, and the U-turn on Ice House Street after walking for 3 minutes simply prove beyond reasonable doubt that the 1^st and 2^nd Defendants were to alight some distance away from the Scene, and that the 2^nd Defendant shall guide the 1^st Defendant to the direction of the Scene from the back, and for the 2^nd Defendant to leave the 1^st Defendant to deal with the claiming as driver of the Vehicle at a suitable time. As stated above, there is no other reasonable possibility that the 2^nd Defendant should return to Central and walk in the vicinity of the Scene again.

28. I am also satisfied that the actions and conduct of the Defendants had the manifest tendency to pervert the course of public justice.  I am satisfied that the 2^nd Defendant, together with the other Defendants, intended the actions and conduct of the Defendants to have the tendency to pervert the course of public justice, i.e. to allow the 3^rd Defendant to escape sanction for his criminal behaviour which includes the dangerous driving which caused the accident.”

7.  While the circumstances of the case against the applicant were highly suspicious, the question is whether the evidence was sufficient to draw the only reasonable inference that he was a party to D1’s false representation to the police that he was the driver of the vehicle, when in fact he was not.

8.  I am satisfied that it is reasonably arguable that the evidence was not sufficient to establish, to the requisite standard, that the applicant was party to a joint enterprise with D1 and D3 to make the false representation to the police as alleged.  The critical factual matters appear to be the change of clothing by D1 and D3, and the applicant accompanying D1 to the scene.  The essential issue is whether, on the primary facts, the irresistible inference was that the applicant was a party to the alleged perverting of the course of public justice.

9.  For the reasons I have stated, I grant the applicant leave to appeal against his conviction.