HKSAR v. MUHAMMAD MASOOM KHALID

HCMA355/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   (Appellate Jurisdiction)

   MAGISTRACY APPEAL NO. 355 OF 2009

   (ON APPEAL FROM TMCC 112 OF 2009)

----------------------------------

BETWEEN

----------------------------------

-------------------------

J U D G M E N T

-------------------------

1.  This is an appeal by the appellant against his conviction by Mr Smout at the Tuen Mun Magistrates’ Court of the offence of using a forged Hong Kong identity card, contrary to section 7A(1) Registration of Persons Ordinance, Cap. 177. At trial the appellant was represented by Mr Jack H.C. Ong, instructed by the Duty Lawyer Service.

2.  The appellant was granted leave to appeal against conviction out of time by the magistrate on 17 July 2009.

3.  He had earlier lodged an appeal against sentence which was dismissed on 24 June 2009.

4.  The charge alleged that on 8 October 2008 inside Chun Wo Construction Site, Zone 55, So Kwun Wat, Tuen Mun, he had without lawful authority or reasonable excuse used a forged Hong Kong identity card, namely an identity card bearing number P762292(2) in the name of Mohammad Sadiq.

5.  In the written letter accompanying his formal notice of appeal, the appellant asked the court to look at the whole case because he claims he is innocent.

6.  The prosecution followed a visit to the construction site by a police officer on 7 January 2009. The appellant was one of the men on the site. He was not in possession of a Hong Kong identity card forged or otherwise but he did have with him a valid Immigration Department Recognisance Form in the name of Muhammad Masoom Khalid.

7.  At the trial the principal prosecution witness was Mr Li Yat Chu (“PW1”) the foreman of the construction site.

8.  In brief his evidence was that the appellant had first come to work at the construction site on 8 October 2008 (the date referred to in the charge) and had produced a Hong Kong identity card and Construction Industry Safety Certificate which he had photocopied. The photocopy of these two cards was produced as Exhibit P1. The name on both the cards was not Muhammad Masoom Khalid but Mohammad Sadiq. As the magistrate commented the photographs on the cards appeared to be of two different people.

9.  The appellant gave evidence that he had not worked at that construction site on 8 October 2008 but he admitted that he had gone there to work on 7 January 2009, the date the police had conducted their check.

10.  The prosecution turned on whether the prosecution had proved :

(1)  that it was the appellant who had produced the Hong Kong identity card which had been photocopied and produced as Exhibit P1; and

(2)  if so, whether the identity card he had produced was a forgery.

11.  The magistrate found that PW1 was a credible witness. He disbelieved the evidence of the appellant. He went on to say that he was sure that the face appearing on the photocopy of the identity card produced as Exhibit P1 was the appellant’s face.

12.  Having warned himself of the dangers of mistaken identity referred to by the English Court of Appeal in R v Turnbull he found that he could rely upon the evidence of PW1 identifying the appellant as the person who produced the identity card to him on 8 October 2008.

13.  He concluded that the photocopy produced by the appellant that day was a forgery on the basis that his photograph was on an identity card bearing someone else’s name.

14.  When the case came before me on appeal, it was still the appellant’s contention that he had not been to the construction site on 8 October 2008 nor tendered an identity card in the name of Mohammad Sadiq.

15.  What initially caused me some concern was that while the appellant admitted that he was working at the site on 7 January 2009 and PW1 had given evidence that the appellant’s name was on the attendance register for that day there was no evidence before the magistrate as to the name in which the appellant had registered for work on 7 January 2009. That clearly might have some bearing on whether the appellant had produced the identity card, a copy of which appears on Exhibit P1, as it might be unlikely for the appellant to sign the register in a name different from that in which he had originally registered.

16.  I accordingly exercised my power to order the recall of Mr Li, PW1, to produce the site attendance records and, out of an abundance of caution, I called for the production of the Registration of Persons Department’s records of the holder of ID cardno. P762292(2) in the name Mohammad Sadiq, which had also not been produced to the magistrate.

17.  The attendance record for 7 January 2009 showed that seven workers had signed the register that day, one being in the name of Sadiq but none in the name of Mohammad Masoon Khalid. Although the appellant’s response before me was to allege that while he was working on 7 January he had not signed the register that day, there was nothing in the attendance register to suggest that the magistrate might have been mistaken in his finding that the appellant had first registered to work in the name appearing on the identity card which was photocopied and produced as Exhibit P1.

18.  The records of the Registration of Persons Department on the other hand did undermine the magistrate’s conclusion. It was apparent that Exhibit P1 was a photocopy of a genuine identity card. The photograph of the holder of the identity card which appears on Exhibit P1 is the photograph of the person who applied for that identity card.

19.  Since the identity card produced on 8 October 2008 was not a forgery, the conviction of the appellant cannot stand.

20.  Mr Wong for the prosecution invited me to substitute a conviction for the offence of using an identity card relating to another person. I declined to do so. Although I considered that there was a high probability that the appellant had been the person who had tendered the ID card in question on 8 October, I could not been entirely sure. Furthermore, although remote, I could not entirely exclude the possibility that he might have been the applicant for the Hong Kong identity card in the name of Mohammad Sadiq.

21.  I accordingly allowed the appeal and set aside the sentence passed on the appellant.