HKSAR v. SIDDIQ MOHAMMED-ABUBAKAR

HCMA 437/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 437 OF 2016

(ON APPEAL FROM KCCC NO 454 OF 2016)

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JUDGMENT

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1.  The appellant was convicted after trial by a magistrate of the charges of possession of an identity card relating to another person, resisting a police officer and assaulting a police officer which are respectively Charges 1, 2 and 3 in the trial. He was sentenced to 22.5 months imprisonment for Charge 1, 2 months imprisonment for Charge 2 and 3 months imprisonment for Charge 3 of which the sentences of Charges 1 and 2 are to run concurrently while 1.5 months of the sentence of Charge 3 are to run consecutively to that of Charge 1, making a total of 24 months imprisonment.

2.  The appellant appeals against the convictions only.

EVIDENCE OF THE PROSECUTION

3.  On 1 February 2016 at about 11:00 am, a group of plain clothes police officers mounted an operation at Chung King Mansion, Tsim Sha Tsui.  Outside the Lucky Guesthouse at C5, 12/F of the building there was a notice with a telephone number on it.  PC 3536 (“PW1”) called the number and a lady said she would come to assist the police to conduct a check of the guesthouse.  While waiting, the police checked 2 persons, one coming out from and the other inside the guesthouse.  Nothing suspicious was found.

4.  At 11:13 am, the appellant, a foreign male of 6 feet tall and very strong build, hurried into the guesthouse and was intercepted by PW1 for enquiries.  The appellant asked who the police officers were and PW1 revealed their police identity and showed his warrant card.  PW1 asked the appellant why he was there and the appellant replied that he was there to locate a friend.  The conversation was in English.  The appellant did not reply when the officer asked for the name of his friend and where his friend was.

5.  When being asked by the officer to show his identity document the appellant took out a Hong Kong identity card (“the questioned identity card”) from his wallet.  Noticing the photograph did not resemble the appellant the officer passed the identity card to WPC 12874 for checking which revealed that it had been issued to DOKU Joseph and reported lost on 26 August 2009.

6.  PW1 declared arrest on the appellant for possession of an invalid identity card.  The appellant dashed towards the police officers and attempted to leave.  He used both hands to push the right face and chest of PC 54765 (“PW2”) who was standing in front of the door of the guesthouse.  PW2 fell down with his right shoulder hitting the ground.  The appellant continued to run away.  PW1 told the appellant not to move, but the appellant kept waving both of his hands.

7.  PW1 and PW2 each grabbed hold of an arm of the appellant.  The appellant waved his arms and PW2 fell on ground again.  PW1 told the appellant to stop moving or baton would be used.  The appellant kept walking and was only finally subdued and handcuffed by PW1 and his colleagues. PW1 declared arrest on the appellant for resisting police officer and assaulting police officer.

8.  PW2 found that his left thumb was injured.  He did not know how it was caused but believed it was in the course of subduing the appellant.

EVIDENCE OF THE DEFENCE

9.  The appellant is an asylum seeker in Hong Kong. On 31 January 2016 when he was going into a public toilet in Sham Shui Po a Chinese male approached him and showed him the questioned identity card.  He recognised the photograph on the identity card as that of his friend Joseph whom he had known for more than 10 years in their African Community.  He gestured to the Chinese male that the photograph on the questioned identity card was not him but his friend.  He took the questioned identity card intending to give it back to Joseph when they met.  As he did not have the telephone number of Joseph he planned to give it to the African Community which had Joseph’s contact the next day.

10.  The next morning after reporting to the CIC (Castle Peak Bay Immigration Centre) he went home to take the questioned identity card to the African Community Office at Alpha House 27-23 Nathan Road, just opposite Chung King Mansion.  He had not called any staff member of the office since finding the questioned identity card and found that the office was closed.  He called the chairman of the Community who said he would return to the office.  He told the appellant to come back later to give him the questioned identity card.

11.  The appellant went to 12/F Chung King Mansion to look for his friend, Mr Ahmed.  He came across Mr Ahmed in a mosque on 31 January 2016 and Mr Ahmed had told him to visit him the next day.  He knew Mr Ahmed had a habit of staying in Lucky Guesthouse.  When he arrived there he found that the guesthouse was locked.  He called the telephone number on the notice posted outside the guesthouse but nobody answered.

12.  He went up to the reception on 15/F but nobody was there.  He found a name card with the mobile telephone number of the owner on it.  He called the number intending to ask what room Mr Ahmed was in.  While he was talking to the owner a police officer (“Officer A”) appeared saying that the police was looking for the owner to conduct a check on Lucky Guesthouse. The appellant told the owner about this and related the message of the owner to Officer A that the owner was in China and would arrange his wife to come to open the door.

13.  The officer went down to 12/F.  The appellant followed suit a few minutes later and went into the guesthouse.  PW2 asked him a number of questions and he answered.  He also told PW2 he was taking the questioned identity card to the African Community and took out the questioned identity card.  PW2 passed the questioned identity card to a female officer who, after checking, told PW2 it was “Copy ID”.

14.  PW2 said he was arresting the appellant.  The appellant asked why, but was scolded with foul language in Cantonese.  He said he was willing to go to the police station, but did not want to be handcuffed. He put his hands down on his side, but PW1 and PW2 grabbed hold of his left and right hand respectively.  The woman officer took out an electric shock gun and showed it to the appellant, but later put it back inside the case.

15.  Officer A and another officer joined in and grabbed hold of his legs.  He was finally pressed down on the ground and was kicked many times and handcuffed.  PW2 even stepped on the back of his neck saying it was message.  During the whole incident, he had never tried to escape.

16.  When being questioned by PW1 after going back to the Tsim Sha Tsui Police Station he denied fighting with the police officers.  PW1 slapped and punched him and told him not to tell lies.  He repeatedly requested for medical treatment but was ignored.  He asked to give a statement but was told it could not be done without an interpreter.

17.  When he was taken to court on 3 February 2016 he filed a complaint of assault by police through the duty lawyer who represented him.  He went for medical treatment when he was remanded in Lai Chi Kok Reception Centre.  He also sought medical treatment at Caritas Hospital when he was granted bail on 26 February 2016.

18.  The owner of the questioned identity card Mr Joseph Doku (“DW2”) testified that he recognised the appellant as a member of the African Community.  He first met the appellant about 2 years ago and had not met him in the last 2 years.  They never had conversation or talked over the telephone.  To him the appellant was a complete stranger.

19.  The president of the African Community Mr Diallo Mohamed Ali (“DW3”) said he had known the appellant for 5 years.  The African Community office was not opened in the morning of 1 February 2016 because one of the staff members was on sick leave while the other was out of Hong Kong.  That morning he received a telephone call from the appellant that he had something to hand over to him and asked when he would be back in the office.  He said likely in the afternoon.  He came to know in the evening that the appellant had been arrested and it was only at that time he was told that the appellant had wanted to hand over an identity card to him.

20.  DW3 said it was not uncommon for members to hand in found properties to the Community for the purpose of locating the owner. They did not take them to the police because of language barrier.  DW3 had contact with DW2 and could inform him when the questioned identity card had been handed to him.

21.  DW3 noticed that the appellant had problem walking even on 24 February 2016.

GROUNDS OF APPEAL

22.  The appellant raises a considerable number of grounds of appeal in his submission and the court will deal with them one by one.

DISCUSSION

23.  The appellant says that in the charges PW2, PC 54765, is named as the victim while the evidence of PW1 was to the effect that he was the victim not PW2, contradicting the allegations in the charges.

24.  This is a misconception on the part of the appellant.  The evidence of PW2 is crystally clear that as a result of the attack by the appellant he fell on the ground twice, injuring his shoulder and thumb. The injuries are consistent with the findings in the medical report of PW2 produced in the trial.  The evidence given by PW1 emphasised on the role he himself played and what happened to him during the incident.  It is not his evidence that he was the victim instead of PW2.  There is no contradiction in his evidence and that of PW2.

25.  The appellant submits that the prosecution witnesses are untruthful because they on the one hand said that he had dashed into the guesthouse, but on the other hand said that he had been arrested outside the guesthouse.

26.  It is in fact not clear where the appellant was arrested.  This is understandable because the situation was rather chaotic as a result of the uncooperative and violent behaviour of the appellant.  He dashed out of the guesthouse and pushed the police officers.  In any event, whether the appellant was arrested inside or outside the guesthouse has no relevancy to the guilt or otherwise of the appellant.

27.  The appellant complains that his complaint of assault by police officers to the magistrate during arraignment is not included in the Appeal Bundle.

28.  The appellant’s complaint, and indeed any complaint, of assault by the police once made to the magistrate will become part of the court record.  The details of such complaint are not normally included in the Appeal Bundle.  The important thing, however, is that the trial magistrate in this case was well aware of such complaint and has set out and considered it in his statement of findings.

29.  The appellant attacks the credibility and reliability of PW1 and PW2, citing a number of contradictions in the evidence of the 2 officers.  He points out that PW1 said in evidence that after he had been pushed twice by the appellant his colleagues came to help subdue and handcuff the appellant.  PW2 said in evidence that he had taken part in pushing the appellant down on the ground.  The appellant queries which officer he was said to struggle with.  He also repeats his argument that PW1 claimed himself to be the victim instead of PW2.

30.  The court is unable to see how this amounts to contradictions between the evidence of PW1 and PW2.  The 2 witnesses are saying in their evidence what they did and what happened to them in the incident. Their evidence is in fact consistent with each other in all material particulars.

31.  Another inconsistency as pointed out by the appellant relates to what happened when the appellant turned up at the guesthouse. PW1 said that the appellant had asked who the police officers were while PW2 said that the appellant had dashed in and asked who the police officers were.

32.  According to PW1 the appellant had hurried into the guesthouse and he and PW2 both said that the appellant had asked who they were and PW1 had revealed their police identity and produced his warrant card. There is no inconsistency in the evidence of the 2 officers in this aspect.

33.  The appellant says that PW2 was not truthful when he said that PW1 had checked the African boy inside the guesthouse because PW1 was checking his identity at that time and it was another officer who had checked the boy.

34.  Both PW1 and PW2 testified in clear terms that it was PW1 who checked the person, a Form 8 Recognizance holder, inside the guesthouse. This is not a matter which the witnesses had to lie about.  There is no substance in this ground of appeal.

35.  The appellant points out that the evidence of PW2 was that he had helped subdue the appellant while that of PW1 was that he together with PW2 and other officers had subdued the appellant and handcuffed him.  The inconsistency the appellant seems to suggest is whether PW2 had taken part in helping handcuff the appellant.

36.  The evidence of PW2 is that he had helped subdue the appellant but fallen on the ground for the second time when the appellant waved his arms to swipe him away and that PW1 and other officers had subdued the appellant and handcuffed him.  His evidence is not inconsistent with that of PW1 because PW1 never said that PW2 had taken part in helping handcuff the appellant.  In any event the difference, if any at all, is too subtle to be of any significance.

37.  The appellant describes PW2 as a liar in saying that he had not noticed the time the appellant was taken out of the guesthouse.  The appellant stresses that PW2 as a police officer had the duty to take note of such time.

38.  This is again an extremely peripheral issue which does not have a bearing on the credibility and reliability of PW2.  He was injured in the incident and it was PW1 who arrested the appellant.  It is not surprising that he had not noticed the time the appellant was taken out of the guesthouse.

39.  The appellant complains that the magistrate wrongly found that there were contradictions in his evidence and that of DW3. He submits that the evidence of the 2 of them is consistent with each other.

40.  The magistrate came to the conclusion that the evidence of the appellant was in direct conflict with that of DW3 after careful analysis and consideration.  He cited as an example the evidence of what the appellant told DW3 when he told DW3 he had something to hand in to him.  The appellant said he had told DW3 it was an identity card while DW3 said that the appellant had only told him it was some document and he had only come to know it was an identity card when somebody told him so.  The magistrate also found DW3 not being reasonable in not asking the appellant what he was going to hand in.  The conclusion of the magistrate that both the appellant and DW3 had not told the court the whole truth cannot be faulted.

41.  The appellant criticizes the magistrate of unfairly treating the evidence of the prosecution and defence with different standard.  He points out specifically that the magistrate should not have relied on common sense to reject his evidence that the questioned identity card had been given to him by a man in Sham Shui Po and that Mr Ahmed had invited him to go to his guesthouse without telling him his room number and time.

42.  Whether a piece of evidence makes sense is of course an important consideration in determining if the evidence is credible and reliable.  The magistrate is perfectly entitled to find that it was unreasonable for the man in Sham Shui Po to just hand over the questioned identity card, an important document, to the appellant when the appellant had indicated that he was not the owner.

43.  Equally it was open for the magistrate to find that it defied common sense for Mr Ahmed to have invited the appellant to visit him in such a manner.  The important thing is that the magistrate did not only rely on common sense but had considered all relevant evidence before he came to reject the evidence of the appellant and DW3.  In doing so, the magistrate had not adopted different standard in the treatment of the evidence of the defence and prosecution.

44.  By the same token, the appellant’s submission that the magistrate wrongly rejected the contention of the defence that DW3 had regarded attending his son’s school programme as important is unfounded.  The magistrate had only rejected the evidence of DW3 after consideration of all the relevant evidence in the case.

45.  The appellant points out that the magistrate erred in finding his evidence and that of DW2 contradicting.  What the appellant refers to is the evidence about how long he and DW2 had known each other.  The appellant said he had known DW2 for 10 years and had met him for many times while the evidence of DW2 was that he had first met the appellant about 2 years ago and the appellant had been a complete stranger to him.  The appellant argues that although he knew DW2, DW2 might not know him.

46.  To be fair to the magistrate he did not specifically say that the evidence of the appellant and DW2 in this aspect were contradicting. After all, the magistrate only came to reject the evidence of the appellant and accept the evidence of DW2 after consideration and analysis of all the relevant evidence in the case.

47.  The appeal of the appellant turns largely on the finding of facts of the magistrate.  The magistrate set out in detail how he considered and analyzed the evidence in the statement of findings.  The court sees no reasons to interfere with the finding of facts of the magistrate.  The magistrate had also correctly reminded himself the burden of proof after he had rejected the evidence of the appellant and DW3.

48.  The appellant raises a considerable number of grounds of appeal. The court has already found each and everyone of them to be of no substance. The court must also point out that all these grounds of appeal, even when taken cumulatively and as a whole, are still not sufficient to overturn the convictions of the appellant.

CONCLUSION

49.  The appeal against the convictions of all 3 charges is dismissed and the convictions are to stand.