HKSAR v. IQBAL JAHANGIR

HCMA 396/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 396 OF 2014

(On appeal from FCCC 392 of 2014)

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1.  On 30 June 2014, the appellant was convicted after trial by Ms Merinda Chow, a magistrate sitting at Fanling Magistrate’s Court, of the offence of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177. He was sentenced to 15 months’ imprisonment. He now appeals against his conviction.

2.  The appellant stood trial together with another person.  The appellant was the 1^st defendant and the other person, Mr Ashwani Kumar, was the 2^nd defendant at trial.  The 2^nd defendant pleaded guilty to an offence of possession of an identity card relating to another person.  He was sentenced to 12 months’ imprisonment.

3.  The case against the two defendants was that they were observed by police officers, together with another person, Mr Kuldeep Singh, acting suspiciously.  The police officers approached them. The appellant was searched and found in his trousers’ pocket was a forged identity card.  The 2^nd defendant was searched and an identity card belonging to another was found on him.  Mr Singh was searched but nothing suspicious was found on him.

4.  The prosecution case rested solely on the evidence of the police officer who found the forged identity card on the appellant.

5.  The appellant denied he had the forged identity card on him.  His case was that he was standing with the other two men when upon seeing the police one of them threw some cards onto the ground.  The police officers picked up the cards and spoke to the person who threw the cards down.  However, the police planted the forged identity card on him.  He gave this account in his cautioned interview and in evidence at trial. He also called the 2^nd defendant as a defence witness.

6.  The issue at trial was who was telling the truth and that was clearly the focus of the magistrate in her statement of findings.  The magistrate having heard and seen the witnesses give evidence and considered the issues raised by the appellant against the police officer, believed the police officer and disbelieved the appellant and the 2^nd defendant.

7.  The issues that the appellant raised against the police officer’s evidence were repeated in his appeal.

8.  The appellant said he had a hole in his trousers pocket and therefore the police officer could not have retrieved the forged identity card from it.  As noted by the magistrate, the trousers of the appellant were not seized and they had been either in his possession or he access to them after the incident.  The trousers were produced with a hole inside the pocket.  The police officer confirmed that he did not seize the trousers and that he had removed the forged identity card from his trousers’ pocket.  He did not know that there was a hole in the trousers’ pocket.  The magistrate considered this matter but accepted the evidence of the police officer that he found the forged identity card in the trousers’ pocket.

9.  The appellant claimed that Mr Singh was detained by the police and that he made a statement to them.  He complained that Mr Singh’s statement was not produced to the defence and that he was not called as a witness by the prosecution.  It was confirmed by the prosecution that Mr Singh did not make a statement to the police as he had been released after they had made their inquiries.  It was open to the defence to either request the prosecution to tender Mr Singh for cross examination or call him as a witness in the defence case.  I am informed my counsel for the respondent that they did neither.  It is submitted by counsel for the respondent that this appeared to be a defence strategy and to leave a comment in closing submissions.

10.  The appellant called the 2^nd defendant who said that the police found an identity card on him and one on Mr Singh but this was inconsistent with the appellant’s account that Mr Singh threw some cards onto the ground and the police came back with identity cards.  The 2^nd defendant also said that he was confused and panicked at the time.  He did admit that he was in possession of the identity card that was found on him by the police.  As pointed out by the magistrate, according to the 2^nd defendant it was not the case that the police found two identity cards and planted one on the 2^nd defendant. The magistrate rejected the evidence of the appellant and the 2^nd defendant where it was suggested that the forged identity card was planted on the appellant by the police.

11.  Having considered the papers and the evidence presented at trial together with the submissions made by the appellant both at trial and on appeal, I am satisfied that there is no basis to interfere with the appellant's conviction.  It was an issue of credibility that the magistrate had to resolve which she carefully approached and considered.  She had the opportunity to see and hear the witnesses in the context of this case and having reviewed the papers and the issues raised by the appellant there is no basis for me to interfere with the magistrate’s findings as to credibility and decision to convict the appellant for the offence as charged which was clearly available on the evidence of the police officer which she accepted, having rejected the defence evidence.

12.  Accordingly, I dismiss the appellant’s appeal against conviction.