HKSAR v. SULEMAN MUHAMMAD

DCCC 717/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 717 OF 2016

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to one charge of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1) (a) of the Immigration Ordinance[1]and one charge of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance[2].

Introduction

2.  On the morning of 25 May 2016 SPC 51123 detected two vessels on the digital radar security system, four nautical miles south of Neilingding Dao in China.  One of the vessels (V1) remained there while the other vessel (V2) travelled in the direction of the Hong Kong International Airport.  After V2 entered Hong Kong waters SPC 51123 notified Police Launch 5 (“PL5”) to intercept V2.  PL5 intercepted V2, a sampan, which was being steered by the defendant in the direction of the Hong Kong International Airport.  On board the sampan was twenty-four other persons. 

3.  The prosecution case in summary is that the defendant and the other twenty-four persons were from Pakistan and were unauthorized entrants and that the defendant by steering the sampan within Hong Kong waters assisted in the passage within Hong Kong of the unauthorized entrants.  The sampan not being equipped with fire-fighting appliances; approved life-saving appliances; and navigation lights for night navigation, the defendant endangered the safety of the other persons on the sampan.   

4.  The defence case in summary is that the defendant did not assist in the passage and that the prosecution has failed to prove the twenty-four other persons were unauthorized entrants. 

Evidence

5.  The prosecution called three witnesses: SPC 51123 (PW1), whose statement was also read pursuant to section 65B of the Criminal Procedure Ordinance[3]; Sgt 2055 (PW2), who intercepted the sampan; and PC 2958 (PW3), who arrested the defendant and interviewed one of the twenty–four persons. 

6.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance (exhibits P7 & P9), including the interception of the sampan; the inspection of the sampan by Senior Ship Inspector Lai; the witness statement of Senior Ship Inspector Lai (exhibit P2); the statement made by the defendant under caution (exhibit P4); a video recorded interview (exhibit P5); photographs (exhibit P6); and that the defendant is a Pakistani national who did not have permission to enter Hong Kong.  

7.  The defendant elected not to give evidence or call any witnesses on his behalf.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  The prosecution must prove the charges beyond reasonable doubt, each charge being considered separately. 

8.  Reliance is however placed by the defence on the content of the video interview as to the circumstances the defendant says he came to steer the sampan.  In reaching my verdict I have considered the reply under caution and the content of the video interview in accordance with the decision in R v Sharp[4].

9.  Admitted in evidence is that the defendant has a clear record in Hong Kong[5].  I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[6].

10.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant 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.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

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.  

12.  I have carefully considered all the evidence. 

Charge 1 – assisting the passage within Hong Kong of unauthorized entrants

Unauthorized entrants

13.  Section 37A of the Immigration Ordinance[7] provides that unauthorized entrant means a person belonging to a class or description of persons who, by an order made under section 37B, are declared to be unauthorized entrants.  By Order dated 20 May 2016 all persons resident or formerly resident in Afghanistan, Bangladesh, India, Nepal, Nigeria, Pakistan, Somalia and Sri Lanka were in addition to persons from Vietnam declared to be unauthorized entrants[8].

14.  Section 37K of the Immigration Ordinance[9] provides that where a person is alleged to be, and there is reasonable grounds for believing that such a person may be, an unauthorized entrant, that person shall be presumed to be such in the absence of evidence to the contrary.  In R v Chan Chak Fan & others[10] the Court of Appeal held that section 37K can and must be construed to require that it appear more likely than not that the person in question is an unauthorized entrant.

15.  The prosecution case is that the defendant and all the twenty-four persons on the sampan were from Pakistan.  Admitted in evidence is that the defendant is a national of Pakistan[11].

16.  The prosecution rely on the evidence of Sgt 2055 (PW2), who intercepted the boat and PC 2958 (PW3), who cautioned the defendant and interviewed one of the twenty-four persons[12] together with the admissions made by the defendant in the video recorded interview that persons on the sampan were from Pakistan. 

Evidence

17.  Admitted in evidence is that at around 10:40 a.m. Sgt 2055 discovered the sampan in Hong Kong waters and signalled the sampan to stop.  Including the defendant there was twenty-five persons on the sampan[13].

18.  Sgt 2055 testified that from the colour of the skin and appearance he thought the persons on the sampan were South Asian.  Sgt 2055 asked the persons to produce their identity documents.  Passports were collected and handed up to Sgt 2055, who remained on PL5.  After checking the passports and photographs Sgt 2055 came to know they were all from Pakistan and that there were no records of any one entering or leaving Hong Kong.

19.  A record was made on PL5 of the passports, names, gender, age and nationality. Sgt 2055 described this as a draft.  Initially Sgt 2055 said he made the draft but later said he did not and did not recall who did.  In answer to court Sgt 2055 said he had remembered wrongly when he first said he made the draft note.

20.  Sgt 2055 said he did not verify seriously whether the names on the draft were the same names he had seen on the passports.  Sgt 2055 explained the draft was written according to the names, nationality; age; whether male or female and the numbers on the passports and therefore believed his colleague had copied the details accurately.  On arrival back at the police station Sgt 2055 was given the draft from which he recorded all the details in his notebook and later the same day in his witness statement. 

21.  In court Sgt 2055 could not recall the names on the passports as he had little knowledge of pronunciation.  Application was made for Sgt 2055 to read the names from his witness statement.  Mr Sherry objected because this was based on hearsay evidence, Sgt 2055 not being the one who wrote the draft note. 

22.  I overruled the objection.  I was satisfied the reading out of the names was not for a hearsay purpose.  The prosecution was not seeking to prove the names were the actual names of the twenty-four persons but simply that those were the names on the passports.  Further, whether or not these were the actual names of the persons on the boat is not an element of the charge. 

23.  Sgt 2055 read out the names which were consistent with the names particularised in the charge.  Sgt 2055 confirmed the names were the same names on the passports he had checked when intercepting the sampan.  Further, admitted in evidence is that the twenty-four-persons, as pleaded in the charge, were arrested by the police[14].

24.  In cross-examination Sgt 2055 agreed he did not mention in his witness statement that after intercepting the sampan he checked the passports.  Sgt 2055 explained from his point of view there was no need to write this down in the investigation process.  When put by Mr Sherry that the names on the draft were not checked against the passports Sgt 2055 replied that when writing his statement, he checked the passports.  Sgt 2055 said he forgot to write down in his witness statement that while writing the statement he checked the passports.

25.  On the second day of trial Mr Sadhwani applied to recall Sgt 2055 to show him copies of the passports.  Mr Sherry objected on the grounds that Sgt 2055 had made no mention of checking the passports in his witness statements and the copies were only extracts and not the full passport.  I overruled the objection.  I was satisfied Sgt 2055 could be shown copies of the passports to see if they were copies of the passports he said he checked.    

26.  Sgt 2055 identified copies of two pages from each passport as copies of the passports he had seen because he could recognise a few of the arrested persons. In cross-examination he said he could recognise three or four. 

27.  Mr Sherry objected to the production of the copies as they were only copies and not even full copies of the passports and the provenance of the copies was unknown.  The copies were provisionally marked exhibit P10.

28.  When asked by the court why he was able to say they were copies of the twenty-five passports he had seen Sgt 2055 replied on that day he saw the passports; he had an impression of a few of them, including the females and the defendant; and that he believed all the photocopies were made at the same period of time.

29.  In questions arising Mr Sherry asked Sgt 2055 why he believed the copies were all made at the same time.  Sgt 2055 replied that after arriving at the Lantau Police Station he asked a colleague to make copies of the passports.  After the copies were made Sgt 2055 saw the copies which were later given to the duty officer.

30.  PC 2958 (PW3), who cautioned the defendant[15], also testified that at 23:15 the same day he interviewed one of the persons found on the sampan by the name of Waseem because there seemed to be deletion and alteration to the name on his passport.  PC 2958 identified the passport as P10 (D9)[16] and pointed out the apparent alteration and deletion to the name. 

Discussion

31.  Admitted in evidence is that the defendant did not have the permission of the Director of Immigration to enter Hong Kong[17]. In the video interview the defendant admitted he knew he entered illegally[18]. 

32.  The only inference to draw by entering Hong Kong by sampan is that all twenty-five persons, including the defendant were not permitted to enter Hong Kong and entered Hong Kong illegally.

33.  Mr Sherry submitted the evidence of Sgt 2055 is wholly unsatisfactory and cannot be accepted as proof the twenty-four persons were unauthorized entrants.  I have no hesitation in rejecting this submission. 

34.  I accept the evidence of Sgt 2055 that on intercepting the sampan he checked the passports of all twenty-five persons and discovered they were all from Pakistan.  The fact that Sgt 2055 did not record in his witness statement that he checked the passports does not cause me to doubt his evidence.  Common sense dictates that on stopping the sampan the identity of the persons on the sampan would be checked. 

35.  I am satisfied on this evidence alone, with or without the aid of the presumption, the only inference to draw is that all the persons on the sampan were from Pakistan and were unauthorized entrants.

36.  I accept the evidence of Sgt 2055 that he directed copies of the passports to be made, which copies he saw after they were made and which he identified in court.  On this evidence I was satisfied as to the provenance of the copies, which were marked exhibit P10 (1-25) [19].

37.  The names on the passports are the same names listed in the particulars of offence.  Admitted in evidence is that all twenty-four persons, as pleaded in the charge, were arrested by the police[20]. The passports show all the persons on the sampan were from Pakistan.  I am satisfied on this evidence, with or without the aid of the presumption, the prosecution have proved the persons on the sampan were unauthorized entrants.

38.  In addition, the unchallenged evidence of PC 2958, that he interviewed one of the persons on the sampan who had passport, exhibit P10 (D9), proves that this person was an unauthorized entrant and supports the evidence of Sgt 2055 that the copies of the passports are of the persons on the sampan.

39.  Even without the evidence of Sgt 2055 I am satisfied the prosecution have proved at least nineteen of the persons on the sampan were unauthorized entrants.  In the video interview the defendant said when he got on the boat in China there was already seventeen persons on the boat who were also Pakistanis[21]and that he flew to China with two other Pakistanis, who were also on the boat with him[22].  The defendant named these two as Noman and Rayes[23]. The passport of Noman is exhibit P10 (D15) and Rayes spelt Raees is exhibit P10 (D28).  The passports show both left Pakistan on 16 May 2016, the same day as the defendant (passport P10 (D5))[24].

40.  I am satisfied full weight is to be attached to the admission that nineteen of the persons were Pakistanis.  The defendant himself is Pakistani and there is no reason to doubt his admission nineteen others, including two who he flew with to China are Pakistanis[25]. Applying the presumption, I am satisfied it appears more likely than not that at least nineteen persons on the sampan were unauthorized entrants.  There is no evidence to the contrary.

41.  For the reasons given I am satisfied the prosecution have proved beyond reasonable doubt that the persons on the sampan were unauthorized entrants.

Assisting the passage within Hong Kong

Within Hong Kong

42.  Admitted in evidence is that the sampan was intercepted in Hong Kong waters with the defendant steering the sampan in the direction of the Hong Kong International Airport[26]. On this evidence I am satisfied that the defendant was steering the sampan within Hong Kong waters. 

Assisting the passage

Movement of the two vessels

43.  The evidence of SPC 51123 (PW1) detailing the movement of two vessels, was read[27].  The radar plot showing the movement of the two vessels is attached to the statement of SPC 51123.  SPC 51123 also gave evidence.

44.  In summary on 25 May 2016 SPC 51123 was operating the digital radar security system.  At 0930 hours SPC 51123 detected a target, V1, 2 nautical miles south of Neilingding Dao.  At 1000 hours V1 stopped 4 nautical miles south of Neilingding Dao.

45.  At 1008 hours SPC 51123 detected a second target, V2.  V2 split from V1 moving at a speed of 8 knots towards the west of Hong Kong International Airport.  At 1036 hours V2 entered Hong Kong waters 1.8 nautical miles west of Hong Kong International Airport. 

46.  At 1040 hours SPC 51123 called Police Launch 5 (“PL5”) to intercept V2.  Meanwhile at 1033 hours V1 was seen moving again north towards Neilingding Dao.  At 1054 hours the signal of V1 was lost.

47.  Admitted in evidence is that at around 1040 hours Sgt 2055 (PW2), who was on board PL5, discovered a sampan in Hong Kong waters being steered by the defendant in the direction of the Hong Kong International Airport.  Sgt 2055 signalled the sampan to stop with a whistle and loudhailer.  Sgt 2055 intercepted the sampan.  Including the defendant there were twenty-five persons on board the sampan[28].

48.  A sketch drawn by Sgt 2055, showing the path taken by the sampan from the time PL5 first saw the sampan to the time of interception, is admitted as true and accurate[29]. Sgt 2055 also gave evidence of intercepting the sampan.  In answer to the court Sgt 2055 said he intercepted the sampan at 1045 hours, which is the same time shown on the radar plot.

Record of Interview (exhibit P4)

49.  Under caution the defendant admitted that after transferring to the sampan the leader of the wooden boat told them where Hong Kong was and taught them the way and how to control the boat.  The leader then jumped in the water and went back to the wooden boat.  When the sampan started wobbling everybody was terrified therefore the defendant controlled the boat until stopped by the police[30].

Video interview (exhibit P5)

50.  In the video interview the defendant, inter alia, said that he was on the sampan to go to Hong Kong[31]; this had first been discussed in Karachi[32]; he flew to China with two other Pakistanis, who were also on the sampan[33]; they boarded a boat in China to go to Hong Kong[34]; when there was a total of twenty-five on board the boat set sail for Hong Kong[35]; after sailing for several hours the boat stopped[36]; the boat sailed again until reaching the sampan when everyone was told to get on the sampan[37]; after the person who brought them to the sampan said they were in Hong Kong he jumped in the water and swam back to the first boat[38];when everybody started to cry the defendant steered the sampan for five to ten minutes until he saw the police[39]; the defendant paid US$2,500 to come to Hong Kong by boat[40]; the defendant came to Hong Kong to work[41]; and the defendant knew he entered Hong Kong illegally[42].

Discussion

51.    The prosecution case is that by steering the sampan in Hong Kong waters in the direction of the Hong Kong International Airport the defendant was assisting in the passage of the unauthorized entrants. 

52.  Mr Sherry, relying on the explanation given by the defendant in the record of interview and the video interview that after the boatman dived into the water the defendant on hearing passengers cry took control of the sampan, submitted that the defendant having no choice but to control the sampan to avoid a disaster at sea was not assisting in the passage.

53.  In making this submission Mr Sherry points to the fact that the defendant took all his belongings with him[43]. This Mr Sherry submitted indicated that the defendant was on a one-way journey and was not part of the plan to bring people to Hong Kong.  Mr Sherry further submitted that the section was aimed at the persons who arrange the passage and not someone like the defendant who had no choice but to step up and save the sampan. 

54.  I accept the evidence of SPC 51123 and Sgt 2055.  I do not find credible the defendant’s explanation that he steered the sampan because people were crying after the Chinese man who brought them to the sampan jumped in the sea and swam back to his boat.  I find inherently improbable that the person taking them to Hong Kong would at any time jump in the sea and swim back to his boat. 

55.  I am satisfied no weight is to be attached to the defendant’s explanation that he steered the boat because others were crying after the man who brought them to the sampan jumped in the water and swam back to his boat, which explanation was not made on oath, has not been repeated on oath and has not been tested by cross-examination (see HKSAR v Wong Ka Wah[44]).

56.  I am satisfied so I am sure on the evidence the only inference to draw is that arrangements were made for the defendant together with the other twenty-four persons to be taken by boat near to Hong Kong waters where they would be transferred to a sampan which the defendant would steer to Hong Kong.  By steering the sampan in Hong Kong waters in the direction of the airport the defendant was assisting the passage within Hong Kong of the twenty-four persons on the sampan. 

57.  In reaching this finding I have carefully considered the submission of Mr Sherry that once PL5 was visible to the sampan the Chinese man in charge of the sampan would at that time have dived in the water to avoid arrest by the police thereby leaving the twenty-five persons on the sampan, including the defendant, to fend for themselves. 

58.  In making this submission Mr Sherry referred the court to a discrepancy in the evidence as to the time the call was made by SPC 51123 to PL5 to intercept the sampan. SPC 51123 says he made the call at 10:40 whereas in cross-examination Sgt 2055 says he received the call at 10:35.  

59.  Mr Sherry submitted that at 10:35 PL5 must have been visible to the sampan and therefore on seeing PL5 the Chinese boatman dived in the water.  I have no hesitation in rejecting this submission.

60.  Not only is it inherently improbable the boatman would at any time have dived in the water to swim back to his boat but by 10:35 the sampan had been travelling for twenty-seven minutes and according to the radar plot at 1033 hours V1 was already moving back in the direction from where the boat had come.    Even if the call was made at 10:35 I reject that around this time someone jumped in the water leaving the defendant and the other persons to fend for themselves. 

61.  Even if I am wrong to reject the defendant’s explanation as to the circumstances he came to steer the sampan, I am nevertheless satisfied the defendant assisted the passage within Hong Kong of the twenty-four persons on the sampan. 

62.  In the video interview the defendant admitted steering the boat for 5-10 minutes until he saw the police[45]. Admitted in evidence is that the defendant was steering the sampan in Hong Kong waters in the direction of the Hong Kong International Airport[46].  Clearly everybody on board the sampan, including the defendant, were going to Hong Kong.  The defendant by steering the sampan in Hong Kong waters was assisting the passage within Hong Kong of the twenty-four persons on the sampan. 

Charge 2 – endangering the safety of others at sea

63.  The prosecution rely on the evidence of Senior Ship Inspector Lai to show that the sampan was unsuitable for sailing and therefore by navigating the sampan the defendant endangered the safety of the other persons on the sampan.  Mr Sherry submitted that the defendant never having control of the sampan was therefore not in a position to ensure the sampan was suitable for sailing.

64.  Admitted in evidence is the witness statement of Senior Ship Inspector Lai (exhibit P2)[47].  In summary Senior Ship Inspector Lai inspected the sampan and found the sampan was unsuitable for sailing at sea because there was no fire extinguishing installation on board; twenty-three life jackets were not of the approved type; and there was no navigation light for night navigation.  

65.  In cross-examination Sgt 2055 disagreed all the persons on the sampan were wearing lifejackets.  Sgt 2055 said most of the persons were wearing lifejackets but not all.  Admitted in evidence is that the photographs (exhibit P6) truly depict the condition of the sampan and its belongings[48].  Photographs 9 &11 show twenty-three lifejackets.

66.  I accept the evidence of Senior Ship Inspector Lai and Sgt 2055.  I am satisfied so I am sure the only inference to draw is that by steering the sampan, which was unsuitable for sailing, the defendant endangered or caused to be endangered the safety of the other persons on the sampan. 

67.  I am satisfied there is no evidence the defendant acted in the honest belief on reasonable grounds that his conduct was not such as to cause danger to the safety of the others.  I am satisfied the defendant had no reasonable excuse for steering the sampan which was unsuitable for sailing thereby endangering the safety of the other persons on the sampan [49].

68.  In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Sherry, both individually and collectively.  Nothing said by Mr Sherry causes me to doubt the findings I have made.

69.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved both charges beyond reasonable doubt, each charge being considered separately. The defendant is convicted as charged.

Annex_A