HKSAR v. HARPREET SINGH

DCCC 798/2019

[2021] HKDC971

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 798 OF 2019

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REASONS FOR VERDICT

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1.  At the commencement of the trial D2 pleaded not guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1] (charge 5); one charge of attempted theft, contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance[2] (charge 6); one charge of possession of an identity card relating to another person, contrary to section 7A (1A)  of the Registration of Persons Ordinance[3] (charge 9)  and one charge of possession of a forged identity card, contrary to section 7A (1)  of the Registration of Persons Ordinance (charge 10).

2.  The theft and attempted theft subject of charge 5 and charge 6 is of property from the 7-Eleven Convenience Store on Lockhart Road in Wanchai.  The thefts were captured on CCTV.  In cross-examination Mr Lee (PW1)  [4], the staff of 7-Eleven, was shown a photograph of Sukhpreet Singh (exhibit PD 1), an arrested person.  When asked if this was the person he is seen serving on the CCTV Mr Lee replied “That’s him”.

3.  Mr Hotten then applied for an adjournment to take instructions from the Department of Justice.  After taking instructions Mr Hotten said that the prosecution would not proceed further on charge 5 and charge 6 and offered no further evidence.  At the end of the prosecution case I accepted a submission of no case to answer on charge 5 and charge 6 and dismissed the charges. 

4.  I now give my reasons for verdict on charges 9 and 10. 

Prosecution case

5.  In summary D2 was arrested on 10 May 2019 near his home.  The prosecution case is that D2 was carrying a grey bag which the police searched after going to his home for a house search.  The police found the two identity cards inside the bag. 

Defence case

6.  The defence case in summary is that D2 was not carrying a bag when he was intercepted and arrested and was not present when the house search took place. 

Evidence

7.  The prosecution called two of fourteen witnesses on the list of prosecution witnesses attached to the prosecution opening: DPC 15413 (PW5), the arresting officer of D2[5] and DPC 53002 (PW7), the exhibit officer who searched D2’s home[6].

8.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance, including the arrest of D2[7]; photographs[8] and a sketch of D2’s flat drawn by DPC 53002[9].  I will refer to the admitted evidence as I review the evidence. 

9.  D2 elected to give evidence.  No witnesses were called on his behalf.   

10.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  D2 has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant on each charge before I can convict, each charge to be considered separately.   

11.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

Prosecution evidence

12.  Admitted in evidence is that at 13:50 hours on 10 May 2019 outside 138 Yee Kuk Street in Sham Shui Po DPC 15413 (PW5)  arrested D2 who was escorted back to his residence at Flat C, 4/F, No. 39 Nam Cheong Street in Sham Shui Po[10].

13.  Between 7:15 and 7:30 that morning DPC 15413 and DPC 53002 (PW7)  together with other police officers attended a briefing conducted by Inspector Yip.   DPC 15413 and DPC 53002 were briefed to attend Flat C, 4/F, No. 39 Nam Cheong Street.  DPC 15413 was tasked to arrest D2. 

14.  At 09:30 a.m. the police arrived in the vicinity of No. 39 Nam Cheong Street.  At 13:45 hours, while on board a police private car, DPC 15413 saw a male walk out of No. 39 Nam Cheong Street.  DPC 53002 also saw the male.

15.  DPC 15413 then approached and intercepted the male.  Both DPC 15413 and DPC 53002 testified that the male was carrying a grey coloured shoulder bag.  

16.  DPC 15413 showed his warrant card and asked the male for his identification document.  It was at this time that DPC 15413 discovered that the male was D2, the person he was to arrest.  After arresting D2 DPC 15413 took D2 onto the police car to ask him some questions. 

17.  After DPC 53002 showed D2 a search warrant for Flat C, 4/F, No. 39 Nam Cheong Street D2 was taken to the flat.  DPC 53002 conducted a search while DPC 15413 guarded D2. 

18.  After searching the bedrooms DPC 53002 searched D2.  From the grey coloured shoulder bag DPC 53002 found two identity cards in the names Sharanjeet Singh (exhibit P3)  and Jagroop Singh (exhibit P4)[11].

19.  In cross-examination DPC 53002 agreed that in his witness statement made on 20 July 2020 he made no mention of searching the grey bag.  In re-examination DPC 53002 confirmed that in paragraph 9 of his witness statement he had mentioned seizing items 3-8 (a backpack, clothing and the tenancy agreement)  from the bed in D2’s room and that items 9-17 were seized on D2 in D2’s room.  DPC 53002 confirmed that item 9 was the grey bag which contained items 10-13, items 10 and 11 being the two identity cards. 

20.  Admitted in evidence is that the identity card in the name of Jagroop Singh was a forgery[12].

21.  Later DPC 15413 conducted a video recorded interview with D2.  The certified translation of the video recoded interview (exhibit D6)  was admitted at the end of the evidence-in-chief of D2[13].

Defence evidence

22.  In summary D2, who was born in 1987, testified that he came to Hong Kong in 2013 to seek asylum and was presently a Form 8 recognizance holder. 

23.  On 10 May 2019 D2 was living at Flat C, 4/F, No. 39 Nam Cheong Street in Sham Shui Po together with Sukhpreet, Sukha and Gill.  Admitted in evidence is the Tenancy Agreement of the flat for the period 13 February 2018 and 12 February 2019 (exhibit P15)  in which the names of Sukhpreet and D2 appear [14].

24.  Photograph 10 (exhibit P9)  shows D2’s room.  The lower bunk was D2’s bed.  Gill and Sukha shared the upper bed and Sukhpreet Singh occupied the room shown in photographs 8 and 9.

25.  On 10 May 2019 when D2 left the flat he was intercepted by the police.  D2 said that he left the flat at about 1 p.m. because he needed to go to Kwun Tong to sign for his expenses for rent and food provided by ISS.  In cross-examination D2 disagreed that he was intercepted at 13:45 because the signing with ISS starts at 2 p.m. and he needed one hour to get there.

26.  D2 says he was not carrying a grey bag when he was intercepted by the police.  The grey bag shown to him in court was not his, he had not seen the bag before and was not sure if he had seen any of the other occupants of the flat carrying the bag[15].

27.  On interception D2 was asked to show his Form 8 after which he was arrested and taken to a car.  Inside the car the police searched D2 and found the keys to his flat.  Some of the police officers then went up to his flat whilst he stayed in the car with the other police officers.

28.  The police asked D2 where the iTunes card were that he had used.  D2 replied that he had never used iTunes cards.

29.  After about half an hour D2 was taken to his flat.  When he arrived Sukhpreet Singh had already been arrested.  In cross examination D2 disagreed that he was taken to the flat at around 2 p.m. and said this was around 1:30 p.m.

30.  D2 did not witness the police search his flat or find the identity cards in the grey bag because he was in the car when the police searched his flat.  D2 says he was only told identity cards were found after he was taken to the police station. 

Discussion

31.  I have carefully considered all the evidence and the submissions of Mr Hotten and Mr Pannu.

32.  I have no hesitation in rejecting D2’s evidence that he was intercepted at around 1 p.m. and that he did not witness the search.  I do not find this evidence credible.  

33.  In cross-examination D2 repeatedly disagreed with the time of interception and arrest.  D2’s evidence was contrary to the admitted facts that at 13:50 hours on 10 May 2019 outside 138 Yee Kuk Street in Sham Shui Po DPC 15413 arrested D2 who was escorted back to his residence at Flat C, 4/F, No. 39 Nam Cheong Street in Sham Shui Po[16].

34.  D2 did not support the case put to DPC 15413 that he was told in the flat that two identity cards were found under the mattress of the upper bunk and asked if they belonged to him to which D2 replied he had no idea as he slept in the lower bunk.  On the contrary D2 testified that he was only told this in the police station. 

35.  I remind myself that the rejection of the defence evidence is not determinative of the issues in the case.  D2 has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

36.  Mr Pannu submits that what was put to D2 in the video recorded interview (exhibit D6)  by DPC 15413 as to the grey bag and the finding of the identity cards is inconsistent with the evidence that D2 was carrying the grey bag when he was intercepted by the police and therefore was in possession of the identity cards[17].

37.  In cross-examination Mr Pannu referred DPC 15413 to four parts of the interview. To understand the submission, I will first set out the questions referred to by Mr Pannu. 

38.  A represents DPC 15413 and is the certified translation of what DPC 15413 said. B is the English translation given by the police interpreter in the interview. In court Mr Pannu asked DPC 15413 to read out in Chinese three parts of the interview which were then interpreted by the court interpreter.  This interpretation is marked IT:

562. A: In your room, the police found one grey bag.

563. B: The police found in your room a grey bag.

IT: The police at your room found a grey coloured bag.

DPC 15413 then confirmed that at counter 565 he showed the bag to D2.

571. A: The police, well, found the following items from your grey bag.

572. B: The police found the following items in your grey bag.

IT: From inside your grey coloured bag the police found the following items.

638. A: Well, the police found a forged Hong Kong Identity document from this, this grey bag found upon search - - in your room.

639. B: The police found in the bag from your room, a forged Hong Kong identity card.

IT: Well, the police from your room from this - - from this grey coloured bag which was found upon search a forged Hong Kong identity document was found.

39.  After disagreeing that he was not emphasising the grey bag was found in the room, Mr Pannu put to DPC 15413:

Q. I put to you what you were saying in the VRI is the truth, the shoulder bag was in fact found in the room?

A. Disagree

40.  At the end of cross-examination Mr Pannu again referred DPC 15413 to counter 562 and asked:

Q. Is that the truth?

A. Can you allow me to elaborate?

Q. I am asking you is that the truth or not? Just answer that.

A. What was said in the VRI was the truth

Q. OK. Now go to 639. “The police found in the bag from your room”, you see that?

(Court explains)

Q. Now officer, 639 “The police found in the bag from your room”. You agree that’s the truth?

A. That’s the truth.

41.  In re-examination when asked what was the basis of asking those questions DPC 15413 replied, “Because earlier on at the time of arresting D2 he was carrying a grey coloured bag and we took him back to his home to conduct a search and inside the room while searching the grey coloured bag we found upon search those items, that is the forged Hong Kong identification document.”

42.  In oral submission Mr Hotten stated that on the face of the papers there was something of a contradiction but that this was a matter of interpretation; DPC 15413 could have been more specific and how much weight was to be placed on that was matter for the court.  In addressing the court Mr Hotten stressed that the prosecution did not rely on the interview but relied on the evidence of DPC 53002 who conducted the search.  

43.  In my view what was put at counter 638 is open to the interpretation that the forged identity card was found in the room when the bag was searched and not that the bag was found in the room. 

44.  What was put at 562, “In your room, the police found one grey bag” is not however open to the same interpretation.  In particular, when read together with 559, what was put to D2 reads “When the police was conducting a search at your residence in your room, the police found one grey bag”. 

45.  In my view this raises a doubt as to whether D2 was seen carrying the grey bag when intercepted by the police.  In reaching this finding I have taken into account that at no stage in the interview did DPC 15413 ever say that D2 was seen carrying the grey bag when intercepted by the police or that the grey bag was found on his person[18]. 

46.  Although the grey bag was seized I note that the grey bag was never photographed.  In answer to the court DPC 15413 said this was because at the time the defendant was carrying the bag on his person[19]. I did not find this answer satisfactory.  When the photographs were taken the grey bag would be in the possession of the police.  The only photograph of a bag is photograph 14 which is a photograph of a rucksack.  I also note that there is only a photograph of the forged identity card (photograph 18)  and not the identity card subject of charge 9.

47.  I find the prosecution has failed to prove the charges beyond reasonable doubt.  The benefit of the doubt is given to D2 and he is acquitted of charges 9 and 10.