HKSAR v. CHUNG KWOK WAI AND ANOTHER

DCCC 1128/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1128 OF 2012

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Reasons for Verdict

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1.  D1 and D2 were charged with conspiracy to arrange or assist the passage of 3 unauthorised entrants (“illegal immigrants”). D1 pleads guilty but D2 contests the case.

2.  The prosecution case is largely undisputed.  At 1 a.m. or so on 11 October 2012 in Tuen Mun, D1 took up the front passenger seat and 4 Chinese females (3 of which later known to be unauthorized entrants) took up the rear seats in PW1’s taxi.  The destination was Power Station Gate C of Lung Kwu Tan (“Power Station C”).  When proceeding near a police road block in the course of the trip, D1 made a mobile phone call to say there was a road block ahead.  It was clearly made to D2.  The phone call ended.  The taxi was soon stopped at the road block by the police for investigation.  D1’s mobile phone containing a phone number SIM card was seized by the police.   

3.  At 5:50 a.m. on the same date, PW2 (PC11904) and his team were on duty.  He found D2 squatting down in the bushes near Power Station C.  He went up to question D2, who replied that he was hiking.  He gave an address in Tseung Kwan O.  He was wearing trainers and had a water bottle.  He carried 3 mobile phones each with a phone number. He told PW2 the 3 corresponding phone numbers.  PW2 used his police mobile phone to test if the 3 phone numbers could tally the 3 mobile phones.  They all tallied.  He released D2. 

4.  At 3:30 p.m. on the same date, PW3 (PC5430) and his team were on duty.  He saw 7 to 8 people walking from the beach towards the direction of Power Station C.  D2 was at the front. The police laid ambush to await them.  At about 10 metres away, D2 raised his right arm and said in Putonghua “Be quick, be quick.”  (This part of the prosecution case is the only part disputed by the defence.)  At 3 to 4 metres away, the police stopped him for enquiries.  He replied that he was going for fishing and he did not know the people behind him.  There was no fishing gear on him or nearby.  He was arrested for assisting the passage of unauthorized entrants and cautioned.  He maintained that he was going for fishing. 

5.  Admitted facts revealed:

(1) 2 contacts between D1’s mobile phone number and one of D2’s 3 mobile phone numbers on 5 October 2012 between 21:29 p.m. and 21:50 p.m. for 32 seconds and 26 seconds;

(2) 7 contacts between D1’s mobile phone number and another one of D2’s 3 mobile phone numbers between 21:27 p.m. on 10 October 2012 and 01:42 a.m. on 11 October 2012 for 10 seconds to 93 seconds.

6.  The defence makes a half-time submission which fails and then calls no evidence.

7.  In my view, the prosecution evidence has failed to prove any agreement being formed between D1 and D2 for arranging or assisting the passage of the illegal immigrants.  My observations are as follows:

(1) The 5 October 2012 phone contacts were the earliest link between D1 and D2. It can suggest that D1 and D2 knew each other. It cannot suggest any agreement to do anything illegal, let alone this specific crime.

(2) In the taxi D1 called D2 to report that there was a road block ahead. D2 was later found in Power Station C on 2 successive occasions several hours apart. His conduct can best be described as suspicious.

(3) There is no evidence that at the time D1 called D2 on the phone before the road block, D2 knew whether D1 was on a transport vehicle or with anyone, let alone 3 illegal immigrants.

(4) In the absence of any evidence of knowledge of fact on the part of D2, it is difficult to ascertain what agreement was there between D1 and D2. To infer that D2 somehow knew of a plan to transfer illegal immigrants is as speculative as a plan to punch the taxi driver and then carry the loots to Power Station C. Another inference, among many others, is that D2 would like to hear that D1 was transport his sister, one of the illegal immigrants, safely to Power Station C and then say Goodbye to her there.

(5) From a flimsy basis of facts, there can be no single inference, among some possibly innocent ones, for any criminal conspiracy.

8.  D2 is acquitted of the charge.