HKSAR v. SAFDER TEHSEEN

HCMA 139/2018

[2018] HKCFI 1488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 139 OF 2018

(ON APPEAL FROM STCC 3455 OF 2017)

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JUDGMENT

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1.  The Appellant was convicted after trial in the Magistrates’ Court on a charge of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance (Cap 177), and was sentenced to 18 months’ imprisonment. He appeals against his conviction and sentence.

2.  The particulars of the charge, which was Charge 2, were that on 9 September 2017, at the lobby on the ground floor of a hotel in Shatin, the Appellant, without lawful authority or reasonable excuse, had in his possession identity card No Pxxxxxxx(x) (number withheld) relating to one Hussain Niaz. That identity card was produced as Exhibit P1.

3.  In paragraph 3 of his Statement of Findings, the Magistrate said this:

“ The defence claimed that Hussian Niaz was an acquaintance of the appellant. He was about to return the card to the rightful owner. The defence therefore sought to rely on lawful authority or reasonable excuse.”

4.  The Magistrate then summarised the prosecution’s case, saying as follows:

“ 4. On 9 September 2017, police conducted an operation to arrest the appellant and one Ahmad Naeem for another offence. They were intercepted at a hotel lobby in Ma On Shan. Upon the appellant’s arrest, DSPC 34383 (‘PW1’) asked for identification document. The appellant then produced, from his right trousers’ pocket, an identity card bearing the name of Hussian Niaz (Exhibit P1). PW1 later conducted a body searchon the appellant and found, among other things, a hotel key card.

5.  The appellant then led the officers to Room 516 and accessed the room with the key card.  The appellant’s recognizance form (Form 8) was found in a bag, together with the licence agreement of Room 516 (Exhibit P6).

6.  The prosecution also relied on the CCTV footages of the hotel lobby on 3 & 9 September to show that the appellant and Ahmad Naeem went to the hotel to make arrangements for the renting of the room.”

5.  Then the Magistrate summarised the defence case, saying as follows:

“ 7. The appellant elected to give evidence. On 3 September 2017, Ahmad Naeem, Hussain Niaz and the appellant went to the hotel in order to rent a room. The room was to be registered under the name Ahmad Naeem and Hussain Niaz only. It was agreed among themselves that the room would be used for holding party and seeing their girlfriends. Upon reaching the hotel, Ahmad Naeem and appellant took part in the application whileHussain Niaz waited outside in his car. During the application,Ahmad Naeem produced P1 and forged Hussain Niaz’s signature on the application form.

8.  On 8 September, the three of them arrived at the hotel in Hussain Niaz’s car.  Again, it was Ahmad Naeem and the appellant who checked-in the room while Hussain Niaz waited outside in his car.  After moving their belongings from the car, they had dinner in the hotel room and left at around 2200 hours.

9.  Around midnight on 9 September, the appellant returned to the hotel room with his girlfriend and stayed overnight.

10.  It was until the afternoon of 9 September that the appellant discovered that Hussain Niaz left his ID card, together with an ATM card and two bank cheques in the room.  During his phone conversation, Hussain Niaz asked the appellant to bring him back the items.  Ahmad Naeem then put the items into theappellant’s bag.  P1 was seized by the police upon their arrest.

11.   The defence also called Hussain Niaz to give evidence.  His evidence is largely consistent with the evidence of the appellant.”  

6.  Next, the Magistrate gave himself the following self-directions:

“ I direct myself that it is the prosecution’s duty to prove the charge beyond reasonable doubt. The appellant bears no burden to prove his innocence. It was disclosed in evidence that the appellant and Ahmad Naeem were arrested for another offence. I take that as background information as to why were intercepted. I draw no adverse inference against him.”

7. The remainder of what the Magistrate said in his Statement ofFindings appears under the heading “Analysis”.  The first two paragraphs under that heading reads as follows:

“ 13. It was admitted that the appellant was in possession of P1. The issue is whether the appellant could rely on lawful authority or reasonable excuse. It is necessary to examine the evidence of witnesses to determine where P1 was seized and why it was left in the possession of the appellant.

14.   In terms of lawful authority and reasonable excuse, parties agreed that the applicable principle is laid down in HKSAR v Chung Ka Wai [1] that the prosecution has the burden to prove that the appellant has no lawful authority or reasonable excuse,but the defence has the evidential burden to raise the issue.”

8. Then comes the sub-heading “Evidence of PW1”.  Under this sub-heading the Magistrate said this:

“ 15. I have considered the evidence of PW1. I find his evidence logical and reasonable. The course of event as related is consistent with the CCTV footages produced. I accept his evidence.

16. The defence challenged the credibility of PW1. It was contended that PW1 searched the appellant after his colleague handcuffed him, as opposed to PW1’s version in court that the appellant produced P1 before PW1 handcuffed the appellant himself. The importance of this matter goes to how P1 was produced.

17. The defence relied on the footage (Camera 4-05 at 19:29:00) to support his contention. The footage showed that another officer went behind the appellant and since then the appellant had his hands behind his body. On the other hand, PW1 denied the defence’s suggestion and said that he handcuffed the appellant at some time between 19:29:10 to 19:29:25.

18.   I have examined the footage carefully.  I am not able to tell from the footage as to when the appellant was being handcuffedbecause the appellant was blocked by other officers most of the time.  I accept the observation by the defence that an officer was standing behind the appellant at 19:29:10, but I do not accept that it must have been the time that the appellant was being handcuffed.  I note and also accept PW1’s evidence that the appellant had all along been holding his hands behind his body.  Therefore the fact the appellant had his hands at his back could not advance the defence’s suggestion.  I do not accept the footage could cast doubt on the evidence of PW1.”

9. The next sub-heading is “The evidence of the appellant and Hussain Niaz”.  Paragraphs 19 to 25 of the Magistrate’s Statement of Findings come under this sub-heading.  At paragraphs 19 to 23, the Magistrate said as follows:

“ 19. Before analyzing the defence evidence, it is worth to note that the appellant’s version in court is different from the case that was put to PW1. Mr Reading SC, on behalf of the defence, formerly admitted that P1 was found on the body of the appellant and that it was put that P1 was found upon a search conducted in the hotel lobby.

20. That is different from the appellant’s version in court when he said P1 was found inside his bag in the hotel room.

21. Mr Reading SC admitted that it was a mistake on his part and that he misunderstood the appellant’s instruction. He was instructed that P1 was found in the pocket. He mistook that as the trousers’ pocket instead of the pocket of the bag found in the room.

22. I find it unusual that a mistake of this nature was committed. The location where P1 was found is obviously the most important piece of information to the whole case. Counsel would have taken detailed instruction before he could put the case that PW1 handcuffed the appellant, followed by a body search whereby P1 was found. In fact, it was not the first time in this trial that counsel claimed to have misunderstood the appellant’s instruction. The last mistake resulted in the admitted facts being withdrawn.

23.   That said, when counsel admitted to have committed a mistake,in all fairness to the appellant, I allowed the application to re-call PW1 so that the defence case could be put again.  I draw no adverse inference against the appellant for the difference in his evidence and the case previously put to PW1.”

10. At paragraph 24, the Magistrate said that he rejected the Appellant and Hussain Niaz’s evidence and why he rejected their evidence.  This paragraph reads as follows:

“ 24. Nevertheless, I reject the appellant and Hussain Niaz’s evidence for the following reasons:

a. Hussain Niaz’s involvement in the room: I find it to be a concocted story that the appellant was simply accompanying Ahmad Naeem to deal with the arrangements with the hotel. The room was registered under the name Hussain Niaz and Ahmad Naeem, but Hussain Niaz had never taken part in the application on 3 September or the check-in on 8 September. After all, it was the appellant who stayed overnight on 8 September and held in possession of the room card on 9 September. The explanation given by the appellant is unconvincing. He said Hussain Niaz waited in his car outside for the parking space and was not able to find one until they finished with the papers. It was however shown in the CCTV footages that he and Ahmad Naeem stayed for more than an hour. I find it implausible that Hussain Niaz was unable to park his car and took part in the application. I also find it implausible that Ahmad Naeem had to forge Hussain Niaz’s signature in the application form when Hussain Niaz was just outside the hotel. In addition, Hussain Niaz gave a different version when he testified in court. As opposed to waiting for carpark spaces outside the hotel, Hussain Niaz said he actually left the hotel for some business in Shatin.

b. Leaving P1 behind: I find it impossible that Hussain Niaz simply left his identity card in the hotel room. According to the appellant, after Ahmad Naeem presented P1 for the check-in, he returned that to Hussain Niaz, who was still in the car. I do not see how it suddenly re-appeared in the hotel room and left behind unattended.

c.  Leaving P1 behind— from Hussain Niaz’s perspective:When Hussain Niaz testified, his version is different from theappellant’s.  He said his identity card was not returned to him when the appellant and Ahmad Naeem returned to the car.  Instead, he was only given his identity card in the evening when all of them were in the hotel room.  In addition to this discrepancy, I found the course of event related by Hussain Niaz implausible.  He said after P1 was returned to him, hetook out an ATM card and two cheques from his pocket.  Heintended to group them together and put them into his wallet. He then took out his wallet.  However, he put his wallet back to his pocket immediately without putting the cards and cheques in.  His explanation as to how he left behind P1 does not make sense at all.”

11.  The remaining paragraphs of the Statement of Findings are paragraphs 25 – 28, which read as follows:

“ 25. I do not find the appellant and Hussain Niaz’s evidence true or maybe true. I reject their evidence. I accept the evidence of PW1 that the appellant produced P1 for inspection during investigation.

26. I agree with the prosecution that there is a strong indication that the appellant used Hussain Niaz identity to rent the room. This is also supported by the fact that on 9 September the appellant had P1 on the body while leaving his own Form 8 in the hotel room. However, the appellant was only charged with possession of P1, not using it. It is not necessary for me to make such a finding.

27. I accept that the appellant was in possession of P1, which related to Hussain Niaz. I have rejected the appellant and Hussain Niaz’s evidence. There is no evidence, either from the prosecution or the defence, to raise the issue of lawful authority or reasonable excuse.

28.   I am satisfied that the prosecution has proved the charge against the appellant beyond reasonable doubt.  I convict him of Charge 2.”

12.  Three perfected grounds of appeal against conviction have been filed on the Appellant’s behalf. 

13.  Ground 1, in which Hussain Niaz is referred to as “DW2” reads:

“ Ground 1

8.   The magistrate found that it was impossible that DW2 had simply left his ID card in the hotel room—Transcript of Verdict AB 57 L.  The evidence by which DW2 had left his ID card in the room was not in itself inherently improbable or even impossible particularly as DW2 had left other items, namely an ATM card and two cheques in the hotel room.  Accordingly, the magistrate failed to properly or if at all evaluate the evidence in a safe and proper manner.”

14.  Ground 2 reads:

“ Ground 2

9. The prosecution opened and presented their case on the basisthat the Appellant was in possession of the ID card when hewas stopped by the police—Prosecution Opening and Brief Facts AB 13 – 15. The charge related to that matter— Amended Charge AB 7. The magistrate though conflated events that took place on the 3^rd September 2017 and the 9^th September 2017 in assessing that the defendant may have impersonated DW2 which, if made by the prosecution was not part of the prosecution’s original case and in any event was simply a bare assertion without a proper eventualbasis—no evidence was called from the hotel staff as to how the Appellant presented himself. Thereby the magistrate, although not coming to an express finding, nevertheless wrongly took into consideration immaterial factors when determining the primary issue.

See Transcript of Verdict AB 50 N, 51 B, 51 D–F, 51 J–N and 58 C–G.”

15.  Ground 3 reads:

“ Ground 3

10. The factors as listed by which the magistrate found that the Appellant and DW2 were not telling the truth in relation to the arrangements by which the hotel room was rented were, collectively not inherently improbably [sic], and thereby the magistrate failed to properly or if at all evaluate the evidence in a safe and proper manner.

See—Transcript of Verdict AB 51 B–K.

11. Accordingly, but not limited to, in the circumstances as set out above the Appellant’s conviction is unsafe or unsatisfactory.

HKSAR v Ip Chin kei [2012] 4 HKLRD 383 ”

16.  Most ably as always, Mr Daryanani stressed that the trial court had the advantage of seeing and hearing all the witnesses.  That is something which has always to be borne in mind.  But sometimes the complaint on appeal is that the reasoning leading to the conviction involves some flaw that renders the conviction unsafe or unsatisfactory despite that advantage possessed by the trial court.  Very often, complaints of that kind turn out, upon examination, to be without substance.  Let us see if that is so in the present case.

17.  As to Ground 1, what the Magistrate said (at p 57L–M of the record) in the course of delivering his verdict is this: “I also find it impossible that Hussain simply left his ID card in the hotel.  According to the defendant, after Ahmed presented P1 for the check-in on the 8^th, he returned that to Hussain, who was still in the car.”  I have already quoted paragraph 24 of the Magistrate’s Statement of Findings in which he repeated that he found it impossible that the identity card had simply been left in the hotel room.  It is one thing to find it proved beyond reasonable doubt, after due consideration of all the evidence, for the prosecution and for the defence, that the identity card had not been left in the hotel.  It is another thing altogether to say that it was impossible that it had been left in the hotel.  It was not impossible.  To say that it was impossible was summarily to reject the defence case instead of duly considering it in order to decide whether it was or might be true.

18.  Ground 1 is made out.

19.  As to Ground 2, this is what the Magistrate said (at p 58D–G of the record) in the course of delivering his verdict: “I agree with the prosecution that there is a strong indication that the defendant used Hussain’s identity to rent the room.  This is also supported by the fact that the defendant had P1 on his body on the 9^th while leaving his own Form 8 in the hotel room.  However, the defendant is only being charged for possession of P1.  It is not necessary for me to make such a finding.”  I have already quoted paragraph 26 of the Magistrate’s Statement of Findings in which he repeated that and added that the Appellant was not charged with using the identity card.  Since the Appellant was not chargedwith using the identity card, he would not have mounted a defence to using it.  The Magistrate should have totally ignored any allegation that he had used it.  Instead the Magistrate said that there was a strong indication that he had done so.

20.  Ground 2 is also made out.

21.  On the basis of Grounds 1 and 2, the contention in Ground 3 that the conviction is unsafe and unsatisfactory is made out.

22.  Accordingly, the appeal is allowed to quash the conviction.

[Arguments on retrial and costs heard]

23.  Application for retrial refused.  Costs of the appeal awarded to the Appellant, to be taxed if not agreed.  Application for the costs below refused.