HKSAR v. AHMED JUNAID AND ANOTHER

HCMA 456/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 456 OF 2004

(ON APPEAL FROM TWCC 100/2004)

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J U D G M E N T

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1. These two Appellants, both men of previous good character in their early twenties, were jointly charged with impersonating a public officer, contrary to section 22 of the Summary Offences Ordinance, Chapter 228.

2. They were convicted after trial before J.T. Glass, Esq. in the Magistrates' Court at Tsuen Wan, and now appeal against conviction. The Magistrate had to resolve a conflict of evidence between, on the one hand, the first three prosecution witnesses, and on the other hand, the two Appellants. Essentially, he resolved that conflict in favour of the first three prosecution witnesses and against the two Appellants.

3. Unfortunately, the Magistrate did not at any stage state the facts as he found them. So, one has to look to his summary of evidence given by the witnesses whom he believed. But then there is the problem that he said in respect of each of the first three prosecution witnesses that he "accepted most of his evidence". It is not entirely clear if the Magistrate accepted all of those witnesses' evidence which he summarized.

4. Six perfected grounds of appeal against conviction have been filed on the Appellants' behalf. They read as follows:

"1.	The Learned trial Magistrate erred in accepting the evidence of the Prosecution witnesses and rejecting the Appellants' evidence by finding that the Appellant impersonated police officers by using words in Cantonese without taking into account that neither Appellant was cross-examined as to his fluency in Cantonese;
2.	The Appellants have been subject to an unfair trial in that they have been convicted of impersonating police officers by using words in Cantonese when their fluency in Cantonese was in issue and they were not on this matter cross-examined;
3.	The Learned trial Magistrate erred by speculating by making a finding that both Appellants were capable of speaking Cantonese to the extent attributed to them by the prosecution witnesses when there was no or insufficient evidence to make such a finding;
4.	The Learned trial Magistrate erred in finding that PW1-3 could not have fabricated evidence but the 1st Appellant produced what he said was a police identity card, because PW1-3 would not have known about the card before the police arrived since it was concealed in the 1st Appellant's wallet till then. The Learned trial Magistrate was in error because the real issue was whether PW1-3 had an opportunity to fabricate evidence by witnessing the seizing of the card from the 1st Appellant before the alleged use of the card was reported by PW1-3 to the police. There was evidence of such an opportunity because there was evidence of witnessing but no evidence as to when any such report was made.
5.	The Learned trial Magistrate erred by speculating by making a finding that the Appellants gain across to the premises where the offence was alleged to have occurred because the door had not been shut properly when the only evidence specifically on this matter was that the door was closed at all material times.
6.	By virtue of (1) to (5) above, the convictions are unsafe and unsatisfactory."

5. I will go straight to Ground 3. Of particular relevance to this ground is the following passage in the Magistrate's Statement of Findings:

"I found I did not find it surprising that D1 and D2 had picked up a high degree of fluency in street Cantonese within those periods in Hong Kong and that they could hold the argument referred to in the prosecution evidence. I believed they were living day in and day out within the Tsuen Wan Cantonese speaking community where the own Pakistani in language would not be understood by a large majority of the locals. I found there was therefore an urgent need for each defendant to reach an element of fluency in street Cantonese within a short time and this they had done. I further found this Cantonese speaking community would very rarely use English and this accounted for the lack of fluency in English by D2."

6. In my view, Mr Philip Ross for the Appellants is justified in calling that speculation on the Magistrate's part. Indeed, Ms Anthea Pang for the Respondent accepted that there is no evidence to support those findings by the Magistrate. However, Ms Pang put it in this way in her skeleton submissions, paragraph 19:

"Therefore, the Respondent submits that although the learned Magistrate made reference in his Statement of Findings as to how the Appellants could have picked up fluency in Cantonese that was only meant as an explanation of why he did not find it surprising that the Appellants could speak Cantonese as described by PW1-3."

This increases rather than allays my anxiety about these convictions. I would have felt more comfortable with these convictions if the Magistrate had said that he did find it surprising that the Appellant could speak Cantonese as the prosecution witnesses said, that he therefore considered the prosecution witnesses' evidence as to that with particular care, but that he nevertheless accepted their evidence.

7. In my view, Ground 3 is made out and is a basis for quashing these convictions. Without considering the other grounds, I allow this appeal and quash both convictions.