HKSAR v. THIND, PARMJIT SINGH

HCMA 130/2023

[2024] HKCFI 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 130 OF 2023

(ON APPEAL FROM ESCC 1769/2022)

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J U D G M E N T

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1.  The appellant was convicted after trial of one charge of possession of an identity card relating to another person, contrary to section 7A (1A) of the Registration of Persons Ordinance, Cap 177. He now appeals against his conviction only.

The Prosecution Case

2.  On 9 September 2022 at 2:20 am, a police officer, PW1 was on patrol outside On Yip building, Sai Wan Ho Street, Sai Wan Ho when he intercepted the appellant. He suspected the appellant might be in possession of tools to break into and enter premises. The officer asked him to produce some proof of identification and the appellant took out his wallet from his right trouser pocket and produced his Form 8 recognizance document (“Form 8”) from a compartment therein.

3.  It is the prosecution case that the officer thought the appellant looked nervous even after he had produced this Form 8 document. He then seized the appellant’s wallet from his hand and searched it. At 2:30 am PW1 found in the wallet a Hong Kong identity card relating to another person other than the appellant, Exhibit P2.

4.  It was an admitted fact that the identity card was genuine and had been reported lost since June 2019. PW1 spoke to the appellant using simple English and the appellant told the officer that he found it in Wanchai at 10 pm. Since several hours had passed, the officer arrested the appellant for possessing another’s identification card without reasonable excuse or lawful authority.

The Defence Case

5.  The appellant elected to give evidence. On the material night he had been in Sai Wan Ho for dinner and drinks with some friends from 10 pm until 2 am. He was somewhat inebriated by the time he left his friends and planned to get a taxi. He was walking along the street when he saw that identity card on the pavement about 5 minutes before he was intercepted. The appellant had picked it up and put it into his wallet, planning to take it to a police station.

6.  On a previous occasion, on 16 March 2021, the appellant had found a purse containing cards as well as some money and took it to Castle Peak Police Station to hand it in. The purse also contained a Hong Kong identity card of a Chinese female surnamed Liao. Exhibit D1 is proof from the police of this good deed by the appellant.

7.  Whilst looking for a taxi he was intercepted by PW1. When asked to produce an identification document, the appellant gave PW1 his Form 8 and at the same time the identity card in question, Exhibit P2. The defence relied heavily on the answer given by PW1 when asked where in the wallet the Form 8 and the identity card came from. He answered “it was taken out from the wallet at the same time” clearly referring to the Form 8 and the identity card.

8.  The appellant’s evidence was that when he produced both at the same time and handed them to the police officer, he told the officer that he had found the identity card and he wanted to hand it in at a police station. He had not said he found it in Wanchai. English was not the mother tongue of either the appellant nor PW1 suggesting there was room for error and miscommunication.

9.  The appellant’s case was that the identity card photograph did not resemble the appellant at all, so he could not pass it off as his own. He had only just picked it up having found it on the road or pavement and was going to, as he had on a previous occasion, hand it into a police station; he had a reasonable excuse for being in possession of it.

Reasons for Conviction

10.  The magistrate set out in paragraph 7 of her statement of findings that she took into account the prosecution’s burden of proof and that the standard required was beyond reasonable doubt. The appellant’s clear record was considered; credibility and propensity was mentioned.

11.  It was also noted that this was a case of the appellant’s word against that of one prosecution witness therefore, the issue of reliability and the credibility of the police officer was of utmost importance.

12.  The magistrate found PW1 to be an honest and reliable witness and accepted his evidence in its entirety. He believed PW1 later searched and found the identity card in the appellant’s wallet; it was not the appellant who gave it to him.

13.  Even though the witness did say as translated by the court appointed interpreter that the Form 8 document and identity card were taken out “at the same time”, the magistrate accepted PW1’s explanation that what he meant was both items were taken out from the same compartment of the wallet, not at the same time. The magistrate said she made this finding having listened to the evidence in both Cantonese, which she understood and English as translated by the interpreter.

14.  The appellant’s evidence was rejected in its entirety for the following reasons. In paragraphs 21 and 22 of the Statement of Findings, the appellant’s evidence is repeated. The appellant was asked for a form of identification and after this request he took out both his Form 8 as well as the identity card, telling PW1 that he had found it. The magistrate found it absurd that if the appellant’s evidence was true and he was going to take the ID card he found to the police station that he did not initiated the conversation and tell PW1 as soon as he was intercepted that he had found an identity card.

15.  Several discrepancies in the appellant’s evidence were highlighted when compared to cross examination put to PW1 including whether or not he was looking at his mobile phone at the time he was intercepted, whether or not he said he was going to take the identity card to a specific police station and whether the Form 8 and the identity card were both in a compartment on the same side of his wallet or whether they were in different compartments. The magistrate found such discrepancies would not exist if the appellant was telling the truth himself in the witness box.

16.  In considering his previous clear record, propensity to commit this crime as well as his credibility, the magistrate considered the appellants’ previous action of returning an identity card with other lost property to a police station a year earlier a good gesture. However, she sought to distinguish it because that identity card belonged to a female and that the defence had not given evidence of when and how the appellant came to find the property and that identity card.

Grounds of Appeal

17.  There are three grounds of appeal as drafted by the appellant himself. He was unrepresented in his appeal whilst he was represented by Ms Elizabeth Herbert during his trial.

18.  The 1^st ground of appeal is that the magistrate erred in accepting PW1’s evidence and failed to give sufficient weight to the conflicting oral evidence from that witness during examination in chief that the Form 8 document and the identity card was taken out of the wallet at the same time.

19.  The 2^nd ground of appeal was that the conviction is against the weight of the evidence and the 3^rd ground of appeal is that the conviction is unsafe and unsatisfactory.

The Respondent’s Reply

20.  The respondent’s position is that the appeal against conviction should be dismissed. If allowed, the court should order a retrial on the basis that the offence is serious and the evidence against the appellant is strong.

21.  Mr. Praskash L Daryanani for the respondent has filed skeleton submissions, which are very full, helpful and fair.

22.  The respondent is of the view that the evidence against the appellant is strong and that he did not produce the identity card at the same time as his Form 8 document as claimed. The prosecution’s position is that the police officer had to search the wallet himself after and found the identity card in it. For a Form 8 holder, an identity card opens the door to employment in HK and the ability to earn income so he had a motive for keeping it even if he did find it.

23.  However, the respondent also recognises that there is an issue with the findings made and interpretation by the magistrate that although PW1 did say in his evidence in chief that the appellant took out the Form 8 and identity card from his wallet at the same time, that is not what he meant.

24.  The respondent accepts that if PW1 created a doubt himself and his own contradictory evidence goes some way to support the appellant’s own case then the appellant may have established a reasonable excuse defence for being in possession of an identity card relating to another person; the evidential burden being on the defendant. In that case, the prosecution would have the legal burden to rebut that defence by proving that the appellant’s case of a reasonable excuse was not true. If the appellant’s case was true or might be true then he should be acquitted.

Legal Principles

25.  A magistracy appeal is conducted by way of a “rehearing” on the evidence heard before the magistrate. The legal principles concerning the approach to magistracy appeals include the principle that the appellate court will only depart from the lower courts finding of fact and assessment of the credibility of a witness where the finding of fact is plainly wrong. Moreover, the test in deciding whether the magistrate has erred in a manner that the appeal should be allowed is whether it is just for the conviction to be quashed.

26.  The credibility of witnesses in this case is central to the issue. The trial magistrate enjoyed the advantage unlike the appellate court, of having seen and heard the witnesses giving evidence. Therefore, the reliability and credibility of witnesses is within the ambit of the trial magistrate’s assessment.

27.  Notwithstanding the absence of any error by the magistrate, the appellate court must still perform the statutory requirement of conducting a “rehearing”. The court should examine closely whether on the evidence adduced the charge was proved beyond reasonable doubt, failing which the appeal should be allowed.

Considerations

28.  The only prosecution witness contradicts himself in his evidence in chief in relation to a very material and relevant issue. The respondent concedes that this is the case. How the magistrate resolved the contradiction gives rise to concern.

29.  I do not have the full transcript but it would appear from the transcript of closing submissions by defence counsel at pages 26 to 29 of the appeal bundle, there is no dispute that PW1 said the appellant gave him his Form 8 document and nothing else. It was PW1 himself who minutes later searched the appellant’s wallet and found a Hong Kong identity card that did not belong to the appellant. However, in chief he also appears to say that the appellant got out the Form 8 document and the identity card at the same time, thereby contradicting himself. This would accord with the appellant’s own evidence.

30.  The relevant part of the transcript of the closing submissions by defence counsel is at page 27P-28 K of the appeal bundle. I repeat it here;

“Now, he (the appellant) says, when he was asked for his identification, he gave the Form 8, and at the same time, gave PW 1 the ID card which is P2. Pausing there, it is submitted that this account is somewhat supported by aspects of the prosecution case. PW1, in his evidence-in-chief. PW1 was talking about the ID card and what he said was, “Then, inside the defendant’s wallet, on the left side of the compartment storing the banknotes, I found the Hong Kong ID card”. He was then asked to confirm the left side. He said yes. He was asked to confirm “where the notes are kept?” He said yes. The next question was, “where did the Form 8 come from? The same place or another place?” Now, obviously it is submitted that there must be a reference to the same place or a different place as the ID card because that’s how the questions read. The answer he gave, though, was “it was taken out from the wallet at the same time.”

Now, the defence submit that this answer is incredibly telling and actually fits in with the defence case. Now, under cross examination, the police officer eventually accepted that he gave such an answer. In fact, he can’t really deny it because, in re-examination, it was replayed. But he tried to say that he meant “at the same time” was that the defendant took out a Form 8 from the wallet and then the officer took out the Hong Kong ID card but it is submitted that that answer makes no sense and it is an obvious contradiction. It can only have been talking about the Form 8 and the ID card being taken out at the same time; that is the only way to read that answer and it is submitted that his not accepting this fully should affect his credibility as well.

Now, even after, in re-examination, when he was played the passage, he said, “what I mean “at the same time” is, at the time he took out the wallet, he took out the Form 8 at the same time.” That doesn’t make much sense either because, in the context of the answers, he was talking about the ID card, so it must be the ID card and the Form 8 at the same time.”

31.  From that submission I can surmise not only did he, the only prosecution witness contradict himself but when he tried to explain the discrepancy he gave 2 different explanations as to what he meant by taken out from the wallet “at the same time”. The obvious explanation ought to have been it was a slip of the tongue but instead two nonsensical explanations were given.

32.  It is how the magistrate dealt with this or rather, did not deal with it that is of concern. Firstly, the magistrate does not acknowledge the submission that there were two different nonsensical conflicting explanations given by PW1 when asked to explain this answer. Secondly, at paragraph 19 of the Statement of Findings, page 18 of the appeal bundle, the magistrate makes a finding contrary to the evidence.

33.  The magistrate wrote at paragraph 19 and I quote;

“Defence counsel cross-examined PW for him once saying the Form 8 and ID card were taken out “at the same time” and the defence put emphasis on the reason why PW used the term “at the same time”. I however had the benefit of listening to the evidence in both Cantonese and English through interpretation, and I accept the PW’s explanation that he meant the items were taken out from the same compartment. He gave consistent evidence all along that the ID card was found by him upon searching instead of the defendant taking it out, I find no doubt on this part of the evidence.”

34.  According to the transcript of the final submissions, PW1 gave two explanations as to why he said “at the same time” but neither of them were that he meant “the items were taken out from the same compartment”. The magistrate appears to have deduced or interpreted this herself. She did not deal with the contradictions and conclude PW1 gave consistent evidence all along.

35.  In addition, the magistrate has indicated she relies on her own knowledge of Cantonese and her own construction of PW1’s evidence in Cantonese without discussing this with defence counsel during the course of the trial or during final submissions to interpret the answer from PW1.

36.  An Interpreter was required for this trial and even though the magistrate is bilingual, the appellant’s mother tongue is Punjabi and Counsel for the defence, Miss Herbert, relied on the court appointed translator to translate oral evidence from Chinese to English. The appellant also needed an English/Punjabi interpreter to assist him. As the respondent has said it would appear that the magistrate has supplemented the translation from the interpreter and relied on her own interpretation of what she thought the witness meant.

37.  There is merit in this ground. The discrepancies and contradictions have not been dealt with sufficiently. These matters go to the credibility of PW1 and he may very well have been telling the truth and that answer was just a slip of the tongue but the court must be seen to deal with material discrepancies fairly.

38.  Defence counsel also highlighted the appellant’s clear record in Hong Kong having arrived here in 2015. Both limbs should be given weight, his credibility as well as his propensity to commit this crime. There is positive evidence of a previous occasion where the appellant found property belonging to another including an identity card and handed it into a police station.

39.  The magistrate did mention his clear record and did take into account his previous positive act but then appeared to qualify it and qualify his credibility and propensity because that identity card he returned to a police station belonged to a female and that there was no actual evidence as to how he found it and under what circumstances. What is presented as a positive act in support of the appellant’s clear record and his evidence he intended to hand in this identity card has effectively been ignored without good reason.

40.  Another submission that is relevant to his clear record and lack of motive is the undisputed fact the appellant looks very different to the photograph on the identity card. A magistrate is not required to answer every submission made but in this case, a reference to the submission about the identity card itself would have been prudent. This was a fact the defence relied upon to support the appellant’s evidence. It is undisputed that the appellant did not look like the photograph of that identity card, there was also no evidence of its use since it had been reported lost some 3 years prior nor was there any evidence of it being altered for use.

Conclusion

41.  There is merit in the argument and submission for Ground 1. I find the conviction unsafe and unsatisfactory. The appellant’s appeal against conviction is allowed and his conviction quashed.

42.  The respondent submits a retrial should be ordered on the basis that the offence is serious and the evidence is strong if this appeal is allowed. I do not agree. The only evidence against the appellant comes from PW1 and having found his oral evidence affected by contradictions and material discrepancies, a retrial would be a futile exercise. I refuse the application for a retrial.