HKSAR v. MUHAMMAD, ASHIQ

HCMA 575/2021

[2023] HKCFI 3151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 575 OF 2021

(ON APPEAL FROM WKCC 2313 OF 2021)

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J U D G M E N T

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1.  On 14 June 2023, the appellant was convicted after trial by Mr Jeffrey Sze, Magistrate (the “magistrate”) of

(i)     21 charges of managing unlawful gambling in a place not being a gambling establishment, contrary to section 13(1) of the Gambling Ordinance Cap. 148 (charges 3, 6, 8, 10-20, 22‑25 & 28-30 “the managing charges”);

(ii)    1 charge of providing money for unlawful gambling, contrary to section 14 of the Gambling Ordinance Cap. 148 (charge 9);

(iii)   1 charge of lending money at an excessive rate of interest, contrary to section 24(1) and 24(4) of the Money Lenders Ordinance Cap. 163 (charge 27) and

(iv)   1 charge of possession of a dangerous drug, contrary to section 8(1)(a) and (b) of the Dangerous Drugs Ordinance Cap. 134 (charge 31).

2.  The appellant was sentenced to 15 months’ and 2 weeks’ imprisonment in total for the above offences.  He appeals against the convictions of the above 24 offences.

The Prosecution case

3.  The prosecution called 15 witnesses.  The principal witnesses were two police officers who were PW1 and PW2.  Its case was that, an undercover police officer (PW2) was deployed to conduct a decoy operation against illegal gambling activities in the Sam Pei Square area in Tsuen Wan (the “location”). He pretended to be a gambler at the location and participated in the Chinese poker game known as “Sap Sam Cheung” held there.

Charges 3, 6, 8, 10-20, 22-25 & 28-30 – the managing charges

4.  On divers dates between 11 July and 25 August 2020 PW2 observed the appellant to have managed unlawful gambling at the location together with one or more of the seven co-defendants at night on each of the dates as stated in the charges[1].

5.  Whilst gambling at the location PW2 recounted his observations of the appellant taking turns with other South Asian males who were present at the location to act as the banker, commission or loan receiver, the lookout for police officers and serving gamblers by purchasing food and drinks for them.  PW2 stated that the appellant would also maintain order of the den and acted as adjudicator when a dispute arose.

Charge 9 – providing money for unlawful gambling

6.  On the night of 17 July 2020 PW2 gambled at the location.  By the early hours of 18 July 2020 he had lost money.  At 0215 hours on 18 July 2020, when PW2 had lost a considerable amount of money from gambling the appellant approached PW2 and provided him with $3,000 so that he could continue to gamble at the location.

Charge 27 – lending money at an excessive rate of interest

7.  On 9 August 2020, a South Asian male (codenamed Black Male by PW2) approached PW2 and offered him $5,000 to gamble at the location (the “loan”).  On 13 August 2020, when PW2 went to the location again, the appellant demanded PW2 to repay the loan in 10 instalments, each instalment in the sum of $1,000 cash on every Monday.

8.  According to the forensic accountant (PW8), the interest rate of the loan was equivalent to 935.06% per annum, which had exceeded the statutory limit of 60% per annum.

Charge 31 – Possession of a Dangerous Drug

9.  On 26 August 2020, the operation turned overt when many police officers including PW1, arrived at the location.  At about 0056 hours after PW2 had identified the appellant.  PW1 approached the appellant and conducted a body search on him.  PW1 found inside the appellant’s left hand was a folded ten dollar banknote (P1) and a purple straw (P3).  Inside the folded banknote was some white powder.  PW1 also found a blue transparent re-sealable bag (P4) containing some paste-like substance from the appellant’s right trousers pocket. The appellant was arrested for possessing a dangerous drug.  Under caution, the appellant admitted (in Cantonese) that the white powder was ketamine and it was for his self‑consumption, while those in the blue bag was tobacco.  The appellant also asked for a chance (the “Oral Confession”).

Identification of the appellant by PW2 at ID parade

10.  On 9 September 2020, PW2 identified the appellant as the one who had participated in the above offences during an identification parade (the “ID Parade”) conducted by a Chief Inspector (PW9) held in the police station.

The appellant’s case at trial

11.  The appellant was not legally represented at his trial.  He did not give evidence or call any defence witnesses either in the special or general issue.  The defence case established during cross-examination of the prosecution witnesses was a complete denial of all charges.  The appellant denied he managed unlawful gambling.  He challenged the evidence that he had provided any money to PW2 to gamble.  He denied he lent money at an excessive interest rate. He refuted he was in possession of any dangerous drugs.  Finally, he submitted that none of the prosecution witnesses were reliable or honest, more particularly PW1 and PW2.  Further there was insufficient evidence to support the convictions.

The oral confession

12.  The appellant’s case was that he made none of the admissions or statements and that they were fabricated by PW1.  He claimed that he spoke only Urdu or English.  He also contended that the police officers had grabbed his arms and forced him to sit on the ground.  He was not allowed to speak whilst the officers also loudly insulted him at the location.  He alleged that this put him in fear.

Statement of Findings

13.  In an eighteen page statement of findings the magistrate had given a detailed analysis and consideration of all of the evidence.  He found all the witnesses (PW1 to PW15) to be honest and reliable witnesses and accepted their evidence in its entirety.  His conclusion was that the prosecution had proved their case beyond reasonable doubt on all the elements of all of the charges and convicted the appellant thereof.

14.  The magistrate was satisfied the appellant had made the oral confession and it was made voluntarily.

Grounds of appeal and consideration

15.  The appellant filed three sets of handwritten papers comprising his home made grounds of appeal. The grounds in each set generally comprised of a duplication or repetition.

Ground 1 – the magistrate erred in admitting the oral confession

16.  The appellant argues that the alleged confession was made in Cantonese, as the appellant spoke only Urdu or English no such confession was made by him.  Consequently, the magistrate erred in admitting the oral confession as the appellant never said what was alleged.  In addition the appellant was never provided with a written translation of the alleged confession in Urdu or English.

Ground 2 - The magistrate erred in accepting the evidence of PW1 that the appellant was in possession of dangerous drugs.

Ground 3 - the magistrate erred in finding PW1 and PW2 were truthful witness and there was insufficient evidence to support the convictions.

Consideration

17.  I shall deal with grounds 1, 2 and 3 together.  The appellant did not give evidence or call any defence witness on the special issue nor the general issue.  The magistrate directed himself that the burden lay on the prosecution to prove its case beyond all reasonable doubt.

18.  The prosecution case as to the finding of drugs on the appellant and the oral confession was reliant principally on the evidence of PW1.  When the operation turned overt, PW2 identified the appellant and PW1 approached him for investigation.  PW1 asked the appellant if he could understand and speak Cantonese, to which the appellant replied he did.  After finding the drugs in the appellant’s hand, PW1 arrested and cautioned the appellant for possessing dangerous drugs.  Under caution the appellant admitted that the white powder was ketamine and for his own consumption, while those in the blue bag was tobacco.  The appellant also asked for a chance.

19.  The magistrate gave a detailed analysis explaining why he accepted PW1 and PW2’s evidence and rejected the appellant’s case put in cross-examination.  In gist, he found PW1’s testimony to be objective, clear, reasonable and consistent.  He was sure that the appellant had made the oral confession and it was not obtained as a result of any oppression or something said or done by the police officers.  He was satisfied that what the appellant said was true.

20.  As to PW2, the magistrate found his recollection of the events detailed, clear and consistent.  Given the numerous events that had happened on different dates the magistrate understood why on the rare occasion PW2 requested to refresh his memory from the occurrence book.  The magistrate highlighted PW2 was however well able to recollect the names of the suspects particularly recalling the tasks they carried out on different nights in relation to the operation of the gambling den.  PW2’s evidence was distinct about certain nights when police raided the den.  The magistrate found PW2’s testimony unshaken under cross examination.  He found no material inconsistencies or unreasonableness in his evidence.  He concluded PW2 was an honest and reliable witness.

21.  I can find no error in the magistrate’s finding on the credibility of PW1 or PW2.  The magistrate had carefully observed and considered PW1 and PW2’s evidence.  He was in the best position to evaluate and resolve the issue on their credibility.  The magistrate considered all the evidence before him.  Although the appellant was of South Asia origin and claimed to only speak Urdu and English, the magistrate rejected his claim. The magistrate took into account the conversations between the appellant and PW1 and PW2 were conducted in Cantonese. Because they were conversing in Cantonese the magistrate was satisfied that the appellant was competent in speaking and understanding Cantonese.

22.  If as the appellant claims there was no translation provided of the oral confession, it was immaterial because the prosecution case relied upon the appellant’s oral confession and not a written confession.

Ground 4 – the magistrate erred in admitting the identification of the appellant by PW2 at the Identity parade

23.  The appellant contended that the identity parade was conducted unfairly because the appellant was the only male who had a long beard whilst the other actors in the parade either had a short beard or were cleanly shaven.  The appellant complained that the Chief Inspector (PW9) who conducted the ID Parade refused the appellant’s request for him and the other actors to wear a mask.  As the appellant was the only person with a long beard the parade was unfair and any identification of him by PW2 should have been inadmissible.

Consideration

24.  The ID parade was video recorded.  The magistrate found upon viewing the recorded footage all the participants on the parade were South Asian males.  The magistrate was satisfied that PW9 had taken all measures in making the parade fair and balanced.  The measures that were taken by PW9 were as follows : -

(i)     All participants were instructed to wear a shower cap so that the appellant’s ponytail could not be seen;

(ii)    All participants were told to sit with blankets covering their arms and lower body because the appellant had tattoos on his arms and some of the participants were wearing shorts and slippers and

(iii)   The appellant sat next to two other bearded participants.

25.  Having viewed the footage myself, I found no error in the magistrate’s finding.  PW9 had done what was necessary in order to safeguard the fairness of the ID parade.  All the participants looked similar.  They all wore burgundy shower caps.  Their bodies were covered from the neck down to over their feet with dark blankets.  Even though the appellant and the other participants were not wearing masks, the appellant was not clearly distinguishable nor unique as compared to or from the other participants in the parade.  The identification of the appellant by PW2 was therefore admissible.

Ground 5 – lending money at an excessive interest rate (charge 27)

26.  The appellant submits that he did not lend $5000 to PW2.  It was the “Black Male” who lent $5000 to PW2.  As he did not lend the $5000, he did not lend money at an excessive interest rate.  Hence there was insufficient evidence to found the conviction.

Consideration

27.  The facts as found by the magistrate was that on 9 August 2020, PW2 had gambled at the location for about an hour.  During this time PW2 had observed the appellant performing the same tasks as stated in paragraph 5 above.  A South Asian, code named Black Male asked PW2 if he had lost money gambling to which PW2 replied he had won nothing at all.

28.  Black Male then offered to lend PW2 $5000.  He told PW2 it was the rule of the company that the money could only be used for gambling at the den.  PW2 accepted the loan.

29.  On 13 August 2020 at 2315 hours, PW2 arrived at the location to gamble. During his stay, the appellant was seen to have performed the same tasks mentioned above in paragraph 5 above.  At one stage, the appellant asked PW2 when would he repay the $5000 loan (the money loaned by Black Male).  PW2 replied once he received his salary.  The appellant then said the interest would be calculated in accordance with the market rate.  He told PW2 had to repay the loan in ten instalments, each instalment to be paid by cash in the sum of $1000 every Monday.  The appellant told PW2 that the interest would increase if he failed to repay.  The appellant also reminded PW2 not to flee as everybody in Tsuen Wan knew the appellant.  The appellant reminded PW2 to repay on time and allowed PW2 to continue gambling at the location.

30.  In the evening of Monday, 17 August 2020 PW2 returned to the location to gamble.  At about 2245 hours Black Male requested PW2 for repayment of the loan. PW2 complied and repaid $1000.  Black Male reminded PW2 there were still nine instalments to repay.  During this time the appellant was at the location carrying out the same duties as he did on previous occasions.

Consideration

31.  Although the appellant did not physically provide $5000 cash to PW2 on 9 August four days later on 13 August the appellant expressly told PW2 the terms for repayment of the $5000 loan.  According to the forensic accountant PW8, the interest rate was 935.06%, which was far beyond the legal limitation.

32.  On the evidence, it was established that the appellant was taking turns performing tasks with other South Asians managing the location as stated in paragraph 5 above which included acting as a banker, providing loans, collecting and receiving repayments.  The appellant had himself provided $3000 cash to PW2 to gamble on the evening of 18 July 2020.  This was evident by the appellant’s conviction on charge 9.

33.  It was immaterial that the appellant did not physically provide the $5,000 cash loan to PW2.  The appellant had expressed to PW2 the conditions of repayment of the $5000.  The only reasonable and irresistible inference to be drawn from all the evidence was that the appellant had knowledge of the loan of $5000.  The appellant’s repayment conditions of the $5000 made to PW2 was at an excessive interest rate.

Ground 6 – the magistrate erred in disallowing an adjournment of the trial to enable the appellant to engage legal representation

34.  The appellant complains that he was unfairly denied legal representation at the trial before the magistrate.  The magistrate’s refusal to adjourn the trial to enable him to engage a legal representative was unjust.

Consideration

35.  The magistrate complied a very helpful separate Statement of Findings regarding the application to adjourn the trial made by the appellant.  He attached to it an annex setting out a detailed chronology of the dates of hearing, the hearing nature, the application made together with whether on those dates the appellant (or other co-defendants) were or were not legally represented.

36.  The first hearing date for this case was a pre-trial review (PTR) on 16 June 2021.  Two years had lapsed by 24 April 2023 the first hearing date of the trial.  From the 16 June 2021 to 24 April 2023, there were seventeen prior hearing dates.  Of these seventeen hearings, two of them were trial dates[2] which were vacated.  The first trial did not proceed as a co- defendant was hospitalized.  The second trial did not commence as all defendants including the appellant were not legally represented and applied for and were granted an adjournment to engage legal representation.

37.  Approximately a month after the second trial dates were vacated, on 23 December 2022 a mention hearing was fixed regarding the appellant’s legal representation for the upcoming trial.  At that hearing, the appellant was legally represented.  The present trial dates of 24 -28 April 2023 was set down at the PTR hearing on 6 January 2023.  The appellant was represented by counsel at that PTR.

38.  Of the seventeen hearing dates before the trial commenced on 24 April 2023 the appellant was legally represented on sixteen of the hearing dates.  He was only without legal representation on the second aborted trial date, 23 November 2022.

39.  On 24 April 2023 the first date of trial, the third occasion the case was set down for trial the appellant had no legal representation.  Reluctantly the magistrate granted an application for adjournment made by the appellant and the other defendants for 1 day for them to seek legal representation and legal advise.

40.  On the following day 25 April 2023, except the appellant, all the other defendants had reached a plea bargain with the prosecution.  They pleaded guilty and were convicted of their respective charges.  The appellant was the only one left to stand trial, still, without legal representation.

41.  Once again, the appellant applied to further adjourn the case to 26 April 2023 for him to engage a lawyer.  The magistrate refused the appellant’s application and commenced the trial.

42.  In refusing the appellant’s application for adjournment, the magistrate had correctly applied the relevant principles governing the exercise of his discretion.  The magistrate had given due consideration to the fact that the appellant had ample opportunity and time to seek legal representation.  For the majority of the previous hearings the appellant had legal representation.  He took into account that the trial had been rescheduled twice and that the case had unduly dragged on for about 2.5 years since the first hearing date.  He considered any further delay for the appellant to engage lawyers served no fairness to the prosecution or the public.

43.  Presented with the prolonged period taken for the case to be heard, together with the fact that the appellant had more than ample opportunity and time to seek legal representation the magistrate was correct to proceed with the trial. In addition, the appellant had been legally represented on almost all previous hearings but was abruptly unrepresented on two occasions when the trial was due to commence.  The only inference to be drawn from the appellant’s conduct of not having legally representation on the dates for trial was to delay being tried.

44.  Once the trial began with the appellant appearing in person the magistrate had taken all measures to ensure that fairness would not be comprised by his refusal of the appellant’s application for an adjournment.  The magistrate carefully and thoroughly explained inter alia the procedure of the trial, the ingredients of each charge and assisted the appellant in putting his case to the prosecution witnesses amongst others as was necessary for litigants acting in person.

Conclusion

45.  It follows from the above that I am not satisfied there were any merits in the grounds advanced by the appellant against his convictions.  There was sufficient evidence to support the convictions of the respective charges against the appellant.  Accordingly for the above reasons his appeal against conviction is dismissed.