HKSAR v. THAJUDEEN MOHAMED SIYAN

HCMA 215/2020

[2021] HKCFI 2076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 215 OF 2020

(ON APPEAL FROM TMCC 888 OF 2020

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J U D G M E N T

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1.  The Appellant was convicted after trial, of one charge of Criminal Damage, contrary to section 60(1)  of the Crimes Ordinance, Cap. 200. He was sentence to a fine of HK$1,500 and was to pay compensation of $5,000.

2.  The Appellant now appeals against his conviction.

Prosecution Evidence

3.  On 25 May 2020, Mr Choi (“PW2”)  parked his private car JC 3918 (“the Car”)  in front of his taxi and both cars were parked so that they blocked the entrance to the building in which lived the Appellant and PW2.    

4.  On 26 May 2020 at about 1730 hours, PW2 found the Car’s rear bumper was loosened and the rear windshield wiper broken off from the Car.  When he reviewed the CCTV footages, he saw the Appellant had gone through the tight gap between the Car and the taxi, thus believing that the Appellant had caused the damage and reported the matter to the police.  In the early hours of 27 May 2020 when the Appellant returned to the building, he was arrested by the police.  

5.  When the Appellant was interviewed under caution in the presence of an interpreter, the Appellant admitted that he had committed the offence and said that:

“I couldn’t care less and walked past the in the gap of the two cars and damaged one of the private car JC3918’s rear bumper and rear windscreen wiper.”

6.  It was admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221, that the Appellant did on 26 May 2020 gone through the tight gap between the Car and the taxi at 1711 hours as depicted in the CCTV footage submitted at trial as Exhibit P2.

7.  The Appellant, in his record of interview, Exhibit P3, stated that he did pass through the gap between the two cars and damaged the rear bumper and windscreen wiper of the Car, and he asked for a chance and said he was willing to compensate the loss of the Car’s owner. 

Special issue

8.  At trial, the Defence objected to the admissibility of the record of interview, particularly on the grounds that the Defendant was a Sri Lankan national and only speaks Tamil language, whereas the interpreter spoke Sinhalese language to him, which he could not understand during the interview. This was refuted by the interpreter who was called as PW1.  The Defendant, who testified on the special issue, said he told PW1 that he could not read and write Sinhalese.  He only knew very basic colloquial Sinhalese and very little English.  He asserted that PW1 did not explain clearly to him the record of interview. 

9.  The learned Magistrate in his findings on the special issue, accepted the prosecution witnesses as truthful and credible witnesses, and noted that it was not put to PW1 that the Defendant could not understand the Sinhalese language used by PW1, and it was never suggested by the Defence that the answers of the Defendant in the record of interview were fabricated by any of the prosecution witnesses.[1]     

10.  The learned Magistrate also noted that the Defendant was conscious of his rights as he had previously refused to sign on the Notice to Persons in Custody (Pol.153)  (in Tamil language)  (Exhibit D2), and the receipt of notice (Pol. 157)  (in Tamil language)  (Exhibit D3). 

11.  Under cross-examination, the Defendant asserted that he was induced by PW4, through PW1, that if he signed on the record of interview, he would be allowed to leave.  However, as the learned Magistrate noted the Defendant did not testify about such allegation in his examination in chief, and such allegation was not stated in the grounds of objections or put to PW1 and PW4.[2]

12.  The learned Magistrate also noted that on 4 June 2020 in the first court hearing, a Sinhalese interpreter was arranged for the hearing.  The Defendant did not ask for a Tamil interpreter on that occasion. So having considered all the evidence, the learned Magistrate was satisfied that the record of interview was voluntary and therefore admissible. 

Defence Case

13.  The Appellant gave evidence on the general issue and gave an account of bad blood between him and PW2.  This is all set out in the Statement of Findings and I do not wish to repeat it here.  In brief the Appellant denied that he had caused any damage to PW2’s car and that he was not acting recklessly when passing the two vehicles. 

Magistrate’s Findings

14.  The learned Magistrate analysed carefully the evidence of PW2 and did note that the Defence had pointed out that in PW2’s statement, he had stated after the police left, he checked his cars and found no damage.  PW2 explained that the mistake was made and he was not paying attention to the content of the police statement when he signed. 

15.  The learned Magistrate observed that PW2 was not a very sophisticated man and therefore, the mistake having been made by PW2 did not cause him to doubt PW2’s evidence.[3]

16.  The learned Magistrate, having resolved the points brought out by the Defence, in relation to the prosecution’s evidence, then went on to assess the evidence of the Defendant.  The learned Magistrate having carefully viewed the CCTV footages, found that the Defendant was in fact recklessly forcing his way through the gap between the cars, causing the Car “to be shaken with loud sounds”.[4]

17.  The learned Magistrate noted that while the CCTV tape could not show that the Defendant did damage the Car, he accepted PW2’s evidence that when he saw the Defendant climb over the vehicles, he had gone down immediately and discovered that the rear windshield wiper of the Car had fallen on the ground and the rear bumper was detached from the original position.[5]

18.  The learned Magistrate also accepted the Defendant’s admission in his record of interview as truthful, when he said he passed through the gap and he could not care less.  So the learned Magistrate came to the only compelling and irresistible inference that it was the Defendant who caused the damage to the Car when he climbed over the vehicles in order to pass through the gap between the two cars. 

Grounds of Appeal

19.  The Appellant basically appealed on two grounds:

(1)  The learned Magistrate erred in not properly weighing the evidence which did not disclose that damage to the Car was proven; and

(2)  The learned Magistrate erred in not exercising his discretion to exclude the Appellant’s record of interview.

Discussion

20.  As to the 1^st ground of appeal, there were ample evidence from PW2 as to the damage to the Car, and also that PW4 who arrived at the scene later also took photographs of the damage.  As counsel for the Respondent pointed out, both PW2 and PW4 were accepted as credible and truthful witnesses by the learned Magistrate, after he had properly and with great care analysed each of their evidence.  I find no merit in this ground of appeal.  

21.  As for the 2^nd ground of appeal, that the learned Magistrate should not have admitted the record of interview, as the learned Magistrate had explained fully in his Statement of Findings his reasons for admitting the record of interview, so there is no need for me to repeat here.  As I have pointed out, the language issue was fully dealt with by the learned Magistrate in his Statement of Findings.  I cannot, at the end of the day, find that the learned Magistrate was wrong to have admitted the record of interview. 

22.  So at the end of the day, I cannot find any error made by the learned Magistrate, whether in fact or in law, in his conviction of the Appellant.

23.  There is no merit in this appeal against conviction, so the appeal is dismissed.