HKSAR v. KHALID MANSOOR AND OTHERS

DCCC 1084/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1084 OF 2016

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REASONS FOR VERDICT

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1.  The defendants were jointly charged for one count of assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.

2.  D1 and D3 pleaded not guilty while D2 pleaded guilty but disputed the facts that he was the central organizer of the offence.  Conviction of D2 was entered upon his plea and admission of the facts that supported the charge, as the fact in dispute had a potentially significant effect on the level of sentence, a Newton hearing was directed.  Further because the evidence concerned was inter-related to the case against the co-defendants, the Newton hearing was directed to be heard together with the trial of D1 and D3.  Parties raised no objection that the Newton hearing be heard together with the trial at the same time.

3.  In December 2016, the Prosecution has served notice to the defendants pursuant to section 27 of the Organized and Serious Crimes Ordinance, Cap. 455, for enhancement of sentence, on the ground that the offence was an organized crime.  In particular, the two or more acts committed being: assisting the passage to Hong Kong of unauthorized entrants and assisting the passage within Hong Kong of unauthorized entrants.

THE PROSECUTION CASE

4.  On 14 August 2016 at around 3 am, an object carried a number of unauthorized entrants (UEs) entered the Hong Kong Waters and the UEs on board, including the three UEs mentioned in the charge, landed at Nim Wan.

5.  At about 7:55 am the three defendants hailed a taxi at Nai Wai, Tuen Mun and went to Nim Wan Landfill to pick up the three UNs at about 8:22 am, with a view to convey the three UEs to Nai Wai.  The three defendants and the three UEs were apprehended by police before the taxi pull away.  The mobile phones of the defendants and the UEs were seized.

6.  The telephone and WhatsApp records of D2 showed that he was one of the prime “organizer” of a syndicate to receive UEs upon their arrival in Hong Kong by sea and then assist their onwards movement within Hong Kong.  This was a commercial transaction to the benefit of D2 and others.  All the defendants were parties to this illegal enterprise.

THE DEFENCE CASE

7.  14 August 2016 was the Pakistan National Day.  D1 and D3 together with other friends had organized a party to celebrate their National Day that morning.  D2 was the chef of the event.  Soon after they started the preparation for the food, D2 received a call and asked D1 and D3 to go out with him to meet friend(s).  The three of them took a taxi heading to the Landfill.

8.  On arrival D2 got off for his friend(s), D1 followed D2 to check him up.  D1 and D3 had no knowledge of the illegal status of the 3 UEs.  D2 did not expect other UEs to show up, as he all along only intended to pick up his brother.  It was only at that time that his brother requested D2 to help the other two.

9.  As the taxi could only take up 4 passengers, D2 asked D1 to convey the three UEs in question to his home first and he would return with D3 by another taxi.  

MATTERS IN DISPUTE

10.  The three defendants were holders of Form 8 Recognizance and at all material times they were of clear record.  On 14 August 2016, shortly before 8:00 am they hailed the taxi SV1879 to go to the Landfill and was arrested at around 9:00 am at the entrance of the Landfill.

11.  Before the interception, the taxi driver had been told to go back to the point where he collected the three defendants.  At time of the interception, D1 was sitting on the front passenger seat, the three UEs were sitting at the back while D2 and D3 was outside the taxi.  Were D1 and D3 together with D2 and others unknown assisted the three UEs to go to Nai Wai by taxi?  

12.  D2 had pleaded guilty but denied he was the leader or mastermind of the offence.  Was D2 a prime organizer of this illegal enterprise?

FINDINGS

13.  It is for the prosecution to prove his case against D2 beyond all reasonable doubt and also D1 and D3’s guilt on each and every element of the charge beyond all reasonable doubt.  The defendants have no burden of proof whatsoever.

14.  The defendants had a clear record, it is less likely that they would commit a crime and more likely that they were telling the truth during the cautioned interview and in their evidence.  Admission, if any, made during the cautioned interview would only be evidence against the maker only.

15.  All the evidence should be considered as a whole in the light of the defence case and the defence submission.  The case of each defendant should be considered separately.  Where there is any reasonable doubt, the benefit should go to the defendants.

16.  Mr Cheung for D3 referred me to HKSAR v Ivan Chan Man Sum CACC 273/2015 a case in which the Court of Appeal has once again reiterated the importance of the direction that no adverse inference is to be drawn unless it is “the only reasonable inference” (para 57).

BACKGROUND

17.  At 0249 hours on 14 August 2016, the Marine Police Digital Radar Surveillance System (DRSS) showed a suspicious object at 0.1 NMSVV She Kou Harbour moving toward Hong Kong Waters at 5 knots.

18.  At 0254 hours the said object reached Hong Kong Waters and moved towards Nim Wan, New Territories.  At 0317 hours the object was off shore at Nim Wan and at 0322 hours it left Nim Wan and passed out of Hong Kong Waters at 0342 hours.

19.  At 0317 hours the 3 unauthorized entrants specified in the charge, namely NAWAZ Muhammad (UE1), AHMED Zulfiqar (UE2) and ABBAS Qosain (UE3) arrived at Nim Wan.  All of them held Pakistani passports with no record of entering Hong Kong through a valid Immigration entry point.

20.  At 0715 hours a group of 3 South Asian was seen walking along the Nim Wan Road following another group of South Asian at 6-7.  They were carrying rucksack heading to Tuen Mum Town Center away from the Landfill.  The presence of these people aroused the suspicion of Mr Go PW1 who was driving along Nim Wan Road near the Landfill with his colleagues on board and he made a report to the police after he dropped his colleagues at the Landfill.

21.  Shortly before 0800 hours at Nai Wai bus stop Tuen Mun, D1-D3 hired and boarded the taxi SV1879 driven by Mr Leung PW2.  One of the defendant took the front passenger seat while the other two sat at the back.  Mr Leung was instructed to go to Nim Wan.  During the journey, Mr Leung was handed over a mobile phone and he was instructed over the phone to go to Nim Wan Landfill.  Later the taxi arrived and stopped near the entrance of the Landfill.  Near the guard post at the entrance of the Landfill, 3 UEs were seen climbed up from a ditch nearby.

22.  Around 0825 hours the police arrived the entrance of the Landfill where the three defendants were found together with the 3 UEs.  At around 0900 hours the defendants were arrested.  At time of the arrest, all three defendants were in possession of mobile telephones (number in bracket), D1 (64626640) and D3 (97330516) each had a mobile phone while D2 (97241486; 95429826) had 2 mobile phones.  Whereas UE2 and UE3 each were in possession of a mobile telephone.  

23.  Subsequently the police conducted a sweeping operation in the Nim Wan area and further arrested 4 Nepalese and 2 Pakistani.

24.  The phones of the defendants and the UEs were examined by the Police Digital Forensics Team, only the call log but not the content of the WhatsApp communication could be extracted (Referred to Exhibit 69 & Exhibit P80a for the relevant log record).  Police further requested assistance from the mobile phone services provider, certain WhatsApp communication of D2’s phone was extracted (Exhibit P69).

THE INCIDENT AT THE LANDFILL

25.  Mr Leung gave evidence that during the taxi journey he was handed over a phone from the back, and instructed to go to the landfill at Lun Ko Tan (“Landfill”).  He drove as instructed and on arrival outside the entrance gate of the Landfill, he stopped and parked the taxi at the entrance by the pavement.  The two at the back alighted and walked to the guard post.  The two acted as if they were looking for something over there, they gave him an impression that they were looking for their friend(s).  The front passenger remained inside his taxi and used hand gesture to ask him to drive over to the direction of the other two near the guard post.

26.  Mr Leung further gave evidence that upon getting close, he saw the two passengers climbed up from a ditch then several people following them.  Including the two passengers, there were about 5 people outside his taxi.  Once his taxi stopped by the guard post, the front passenger alighted.  The two passengers did not return, people stayed outside talking.  Later several of those outside got into his taxi.  He raised 4 fingers to remind them his was a four-seat taxi.  After his taxi was fully loaded, one of the people outside told him go back to Nam Wai, he understood that meant to be returning to where he collected them.  There was no staff at the guard post.

27.  All the defendants gave evidence that D1 got out from the taxi one minute after D2.  Mr Leung was being cross-examined as to whether the two rear passengers alighted at different stages and whether they walked together.  Although Mr Leung’s concern was to ensure someone remained behind to look after the unpaid taxi fare, he was sure he saw the two at the back alighted at the same time on either side of the taxi and went up to the guard post and when he moved closer to the guard post he saw the two climbed up from the ditch.  There was, however, no mention of any climbing up from the ditch by the defendants.  I considered and accept Mr Leung’s evidence.  I considered and reject the defendants’ evidence that D1 only went up to D2 after one minute.

28.  It was not disputed that when Mr Leung was about to pull away, a private car UD6935 with plain clothes police officers on board came and blocked his way.  Soon another police vehicle came to the scene.  Police officers ran out from their vehicles and proceeded to intercept and enquiry with the 6 South Asian males.  Upon police request Mr Leung printed out the receipt of the abovementioned journey (Exhibit P48), which showed the journey started at 0757 hours and the receipt printed out at 0832 hours.  No one attempted to pay the taxi fare yet.  To his knowledge the journey was to end upon his return to Nai Wai bus stop.

A JOINT ENTERPRISE?

29.  The three defendants and the three UEs were seen talking at the scene in their own language.  During the videoed interview, all the defendants gave a similar explanation for their presence at the scene.  They boarded the taxi at Nai Wai, went over to the place of arrest to meet a friend and D1 was paying the taxi fare when the three UEs boarded the taxi.  They did not know the three UEs.  D2 explained he did not tell the police he was there to pick up his brother because he was scared as he had never committed any crime before. 

30.  All of the defendants, however, gave evidence that they intended to take the same taxi back to Nai Wai, and no payment was tendered before their arrest.  When the D1 and D2 were shown their respective answer about “D1 was paying the taxi fare”, they invariably replied they did not remember what they have said at that time.  The fiat counsel did not put similar question to D3 again.  It could not be mere coincidence that the 3 defendants gave the same false account of the event in their respective interview, I consider they had concocted together in order to distance themselves from the 3 UEs found with them at the scene.  According to D1 and D3 they did not know the illegal status of the 3 UEs, D2’s brother was only introduced to them at the police station in the case of D3 and at Lai Chi Kwok in the case of D1.  Why would D1 and D3 want to concoct together with D2?

31.  14 August 2016 was the Pakistan National Day.  Mr Muhammad Adnan, the second defence witness (hereinafter referred as DW) gave evidence that he knew D1 to D3 over two years, D1 to D3 lived in Nai Wai, they lived in the same area.  On 14 August 2016 he went to a friend’s home at Nai Wai to celebrate together with another 10 to 12 friends.  Upon arrival around 6:30 am to 7:00 am D1 to D3 were already there.  DW further gave evidence that at one stage D2 received a call, and after that he said to D1 and D3 “Let’s go with me, we meet some friends and then we come back”.  D1 and D3 then left with D2.

32.  DW initially said the party was organized by all the friends together.  When being asked in whose home was the party being held, DW said he did not know whose home was that and went on to say D1, D2 and D3 were living in the same area and in further clarifying he did not know whose home was that, he said he was only invited to the party by a friend.  D1 gave similar evidence as his DW, except that he said the party was held at his home and to be commenced at 11:00 am, if so, he would be the de facto host of the party.  DW has known the defendants over 2 years, it was strange that DW did not know that he was at D1’s home.  DW was not asked what happened to the party without the defendants.

33.  D1 also gave evidence that they started to arrange for the party at around 6:30 am when D2 came to his house.  Between 7:00 am and 7:30 am D2 went out to receive a call, upon return D2 asked him and D3 to go with him to meet some friends in Tuen Mum, he did not know why he was requested to go along.  Nothing more was mentioned during the taxi journey why it was necessary for him and D3 to accompany D2 to meet his friend, nor did he ask.  If that was the case, why would D1 leave the party without finding out more why he was required to go with D2; and why he did not make any enquiry when it appeared to him that D2 was not able to tell the destination and needed to hand over his phone to the driver with the taxi was moving further and further away from Tuen Mum to a remote area? 

34.  D1 gave evidence that upon arrival the destination, D2 got out and said he would come back after he meet friends.  About one minute later after D2 left, he got off the taxi and went after D2 intending to ask him to come back quickly, as there were other friends at home and D2 also had to do the cooking.  He went up and saw D2 with his friends, D2 was talking with his friends, in particular D2 was talking to one of the friends later he found out that person to be Nawaz Muhammed, but he did not hear the conversation suggested by D2’s counsel.  He did not know if D2 knew the other two or not.  D2 indicated to the taxi driver and the taxi driver came over.  He did not know where D2’s friend came from, he just shook hands and greeted with them.  D2 asked him to take the 3 men back with him in the taxi, and D2 and D3 would come back in another taxi.  He did not know the illegal status of D2’s friends, he thought they were arrested because D2 and D3 did not have their document with them.

35.  D3 gave evidence that D2 asked him to go together at Tuen Mum to meet a friend, he did not know whom he was expected to meet, yet he did not ask.  During the taxi journey, nothing was mentioned about the friend whom they were to meet, he did not know why he was asked to go together and he and D1 did not ask.  On arrival D2 got out first then D1 followed.  D3 agreed with D2’s counsel that D1 got out from the taxi a minute or so afterward, however this was contrary to what Mr Leung observed.  I considered and reject any evidence that D1 and D2 were not alighting the taxi approximately at the same time. 

36.  D3 gave evidence that from a distance he saw D1 and D2 were standing and talking with some other people.  He did not know those other people, he did not know from where they came from and why they were there.  He followed D1’s indication to ask the taxi driver moved over to them.  After the taxi moved and stopped by them, he got out of it to greet D2’s friends.  Then the 3 men got into the back of the taxi and D1 got into the front.  He only learnt about the status of those people upon arrested by the Police. 

37.  According to the defence case, the party celebrating the National Day was held at D1’s home, D3 was one of the organizer while D2 was the chef, they have collected $4,000 from the friends and they were yet to complete the preparation of the party food.  They took the party as an important event and started to do preparation early in the morning.  D1 and D3 gave evidence respectively that in the course of the preparation they were only told by D2 to meet friend(s) at Tuen Mum, they were not told why they were required to go and the identity of the friend(s).  Both D1 and D3 said they did not know, they did not ask for the reason and they just went with D2.  They may not be provided with an answer but I find it unbelievable that they did not even ask in the circumstances they alleged.

38.  It is noted that the scene was in a remote area, one would not normally expect to find another taxi, it would be difficult for D2 to keep the taxi and looked for the 3 UEs at the same time on his own.  D1 gave evidence that during the journey he was sitting at the back with D2 in the taxi.  D3 gave evidence that he was sitting in the front passenger seat.  D2 gave evidence that he instructed the driver went to the Landfill with the assistance of a Nepalese over the phone. 

39.  D2 gave evidence that his brother Nawaz UE1 went to China and planned to come into Hong Kong illegally but he was not involved in the arrangement.  Nawaz used mobile phone of others to inform him his situation in China.  He shared this with 2 to 3 friends as found in his WhatsApp record but he did not share it with D1 and D3. D1 and D3 did not know his brother Nawaz.

40.  D2 also gave evidence that on 14 August 2016 around 7:00 am he received a call from an unknown Nepalese telling him to pick up his brother in Tuen Mun.  After they got on board the taxi, as he did not know the place, he called that Nepalese and passed over the phone to the driver to let that Nepalese guided the driver to the Landfill.  If he did not know the place he should have called once he got inside the taxi and not during the trip, the fact that the call was made during the trip suggested that he was only not able to communicate the exact destination to the driver.

41.  Upon arrival he saw his brother and the other 2 UEs came after his brother.  His brother requested him to help and let the other two who had lent mobile phone to him go to their place and might be somebody who knows them might come and pick them up.  Despite of the uncertainty of Nawaz’s statement and the risk involved, D2 acceded to his brother’s request.

42.  It was D2’s case that he was to pick up his brother only in the start, so whether a friend or some friend is important to his case.  D2 gave evidence that he was mentioning a friend instead of some friends, D1 might have mistaken at that time.  D1 disagreed when D2’s counsel put to him that D2 referred to a friend instead some friends and he was not mistaken on that.  D3 gave evidence that D2 mentioned a friend at that time.

43.  Further it was D2’s case that he was only to pick up this brother that morning when he left with D1 and D3.  If that was the case, why he would need two people to go with him just to pick up his brother at the guard post of the Landfill.  If he was minded to seek assistance from D1 and D3 why he did not tell them the purpose directly, it was not a secret as such as he has already shared with other friends.

44.  If D1 and D3 came along with the belief that they were to meet friend(s) of D2, where no introduction was made before the 3 men were arranged to leave by the taxi, would it arouse their suspicious?  Why D1 would agree to convey those 3 friends of D2 to his home?  D1 explained he did not ask D2 to look after his friends because D2 did not know the way to his house by taking the taxi there.  It was D1’s evidence that D2 came to his house for the party, D2 together with him and D3 left his home to take a taxi, and it was the DW’s evidence that all the defendants lived in the same area.  I consider any suggestion that D2 did not know the way to D1’s home is not believable.

45.  The evidence of the defendants suggested that D2 was responsible for the cooking of the party due to be commenced at 11:00 am that morning and D2 was yet to purchase the meat for the cooking and the money for the purchase was with D2.  Why would D1 and D3 agree instead of having D2 return first, he was left behind at a remote area where it was difficult to get another taxi and the mobile phone services connection was not go.  When being asked how was he to arrange another taxi back, he said did not think of this matter at the time.  I considered and find none of the defendants was an honest witness, I reject their respective evidence that D1 and D3 did not know the purpose to go to the Landfill and did not know the illegal status of the 3 UEs.

46.  According to Mr Leung’s evidence, all the three defendants worked together, on arrival D1 and D2 alighted and walked over to the guard post as if they were looking for something later turned out to be the 3 UEs named in the charge, while D3 was there to keep the taxi waiting.  I considered the evidence as a whole and find the only irresistible inference is that D1 and D3 each had full knowledge that they were to pick up UEs together with D2 when they hired Mr. Leung’s taxi.

D2’s ROLE

47.  D2 gave evidence that he had previously turned down one of the two UEs request in converting Rupee to Hong Kong dollars because he did not want to get involved, this suggested he knew it was illegal to assist other’s illegal entry to Hong Kong.  According to D2’s evidence, he had kept D1 and D3 in dark about the illegal entry of his brother Nawaz, however it was D2’s case that he had a conversation with brother Nawaz related to offer assistance to the other two UEs in the presence of D1.  D3 gave evidence all were standing and talking, though D1 said he did not know the content of their conversation. 

48.  According to D2’s evidence he must have learnt the illegal status of the other 2 UEs after he talked with his brother Nawaz.  D2 told D1 to convey the 3 UEs to Nai Wai when he could have done it himself.  Why would he discuss anything related to illegal entry in front of D1 when he was minded to keep this from him in the first place?  What made him believed in such circumstances D1 would take the risk for him?  Where he believed D1 did not hear the conversation, why should he put his friend at risk? 

49.  It was D2’s case that his original intention was to help his brother only; it was not until he met his brother who requested D2 to assist the other two UEs as they had been helping him by lending him their mobile phones.  D2 did not expect other UEs to show up.  First, according to D2’s case his brother did not have mobile phone, if the brother was not with others how they were supposed to communicate with each other upon the brother’s arrival at such remoted area.  If the brother managed to reach the guard post on his own or with assistance, D2 could have arranged via the call from the guard post to have his brother to wait for him there.  In such case he could have get a taxi and picked up his brother, the only one he expected to meet, by himself alone.

50.  It was illegal for one to convey UEs.  One would have no control whether someone would found the UEs suspicious and made a report to the police.  Thus one would have his concern in engaging an innocent party e.g. a taxi driver to convey UEs.  D2 gave evidence that had he known he was to convey 3 UEs, he would have taken two taxis as one taxi could not accommodate more than 4 people.  I considered and reject D2’s evidence that he was only to pick up his brother, the fact that only one taxi was involved at the material time did not cast any doubt to the prosecution case.  According to the defence case D2 and D3 were to take another taxi back anyway, thus it was not impossible for them to get back to Nai Wai at a later time. 

51.  The fiat counsel Mr Polson suggested to D2 that he instructed D1 to convey the 3 UEs because he was the leader, he would reward D1 with money, and he could be able to deny involvement should D1 be intercepted by Police on his way back to Nai Wai, D2 disagreed.  I considered and find D2 was not an honest witness and rejected the evidence that he was not the leader of the arrangement to pick up and convey the 3 UEs to Nai Wai.

52.  D2 gave evidence that he did not know the landline in the guard post of the Landfill, it was from that landline that the Nepalese called him and said “I am a security guard at this post.  Your brother Nawaz is here.  You should come and pick him up”.  According to the phone record, the first call from the landline was at 7:46 am, and D2 called back the landline at 7:56 am and 7:59 am when he was inside the taxi.

D2’s WHATSAPP COMMUNICATION (EXHIBIT P69)

WhatsApp extracted from 97241486

53.  On 7 August 2016 at 11:05 pm D2 sent a contact number 8613168339055 to Mubashir.  D2 said Mubashir was his friend and he shared with him the arrangement of his brother Nawaz illegal entry to Hong Kong.  D2 said the number was the contact number provided by his brother, he provided it to Mubashir for their direct contact.

54.  On 10 August 2016 at 10:48 am D2 sent a voice message to Mubashir “Friend, those people, that person of ship how much money is being asked inside ferry, the one with the Nawaz, give to that person?”  Later at 10:53 am Mubashir replied “26” and D2 replied “Ok”.  D2 gave evidence that these WhatsApp appeared because Mubashir asked him if he had any knowledge about the money pay, this simply was inconsistent to the message recorded.    

55.  Then at 10:53 am D2 send a voice message to Mubashir  “Then he said that I will tell my family one hundred fifty thousand you now, eight thousand has been given already and hundred fifty thousand giving now, then I took out and I said listen, the money has to be paid then only people will be allowed to board on the ship … need to pay money understand I don’t have enough money to (pay) for both of you.”  D2 said the money mentioned in the message was rupee, he was telling Mubashir that one of the 2 boys with his brother to come by ship wanted his family in Pakistan and him helped to convert the money to Hong Kong and sent it to him in China.  Mubashir advised him that he should not get involved with the two boys.  

56.  It is noted that at 10:54 am Mubashir replied “There is no need friend, to agree, (then complaining headache) you tell him he should not talk to me, only talk to them.  If one is to read the two messages together, it appeared that when D2 told Mubashir someone had problem in making payment before boarding the ship arranged for the illegal entry, Mubashir did not want to take up the matter himself and asked that person should not talk to him.  Considering the messages between Mubashir and D2 as a whole, it is suggested that Mubashir and D2 are related to the syndicate that arranged the illegal entry of UEs into Hong Kong.

WhatsApp extracted from 95429826

(a) 923128900982

57.  D2 said that was his brother Abubaker.  On 10 August 2016 at 6:31 pm “the brother” asked D2 “my friend send me my account number”.  Then at 6:31 pm D2 sent over a photo depicting the account number of his brother Abubakar.  When being asked why would you have his brother’s bank account number, D2 replied “Because he is my brother and he sent me a picture of it.  If I need money, I ask him or if we have to send.”  If D2 needed money, he might have to provide his account number to his brother, it would only be the case that he wanted to send money to his brother that he needed his brother’s account number.  D2 was not supposed to have any source of income in Hong Kong, why would he need his brother’s account number in Hong Kong?

58.  Later at 6:34 pm D2 asked “He has given 40 thousand rupees and left or not?”  In the next 2 minutes the two confirmed the sum of 40,000 already given and how much to be take out and give to home.  D2 explained that a friend borrowed HK$3,000 from him in Hong Kong for emergency and remitted the equivalent Rupee to his family in Pakistan, namely his brother’s account.  D2 obviously needed his brother’s account to receive the 40,000 rupees.

59.  On the next day at 3:02pm “the brother” send three messages “It’s done”, “all money”, “any other work”.  D2 replied by two messages “Thanks” “OK wait”.  D2 said 923128900982 was his brother Abubakar’s phone number.  Whoever was the holder of that number, that person was awaiting for D2’s instruction.  D2 further gave evidence that later on he told his brother to send him back the money via his friend’s account and the brother messaged him that “I have sent that money” referring to the record at entry 47 and 48 happening on 13 August 2016 at 9:17 pm and 9:18 pm. 

60.  In explaining the Whatsapp messages he sent out, D2 gave evidence that time being he was also informing his brother Abubakar about brother Nawaz’s situation in China.  On 13 August 2016 at 11:37 pm Abubakar called and asked “They left or not?”.  And he replied at 11:49 pm that “They have left” because brother Nawaz would keep him informed by message or telephone call. 

61.  D2 gave evidence further that sometime after midnight on 14 August 2016 at 1:22 am brother Abubakar called and asked what was happening.  And he replied at 1:28 am that “Don’t message, I will find out later myself when I’m free and let you know, alright.  Now I am busy here”.  However, D2 said he was not busy at anything, he was at home, it was just that Abubakar repeatedly messaging him he made such reply.  If D2 did not want to receive any message he could have just switched off the phone, but he was busily communicating with others via his two mobile phones (Exhibit P80a item 5 &7) during that period of time. 

62.  According to the record, D2 send another message at 1:28 am “Not known, if they are still on the way, not receiving the call, will inform when they arrive.”  Then again at 4:27 am “They have arrived in Hong Kong but have not reached me yet, will contact later, wait for a while, understand?”  Then again at 5:15 am “When they reach me, if I know anything, will let you know as well, alright, don’t message again and again, do sleep”.  And then again at 7:36 am “I reply you later, reply you later, have not arrived yet”.  The three UEs arrived at Nim Wan at 0317 hours, the aforesaid messages sent by D2 showed that by 4:27 am on 14 August 2016 he had already learnt the arrival of them.

(b) Ali Shah

63.  D2 said Ali Shah was his friend, he also told this friend that his brother Nawaz was coming to Hong Kong.  The record showed that sometime before early hours of 13 August 2016 Ali Shah called D2.  D2 said Ali Shah called to ask about the progress of his brother’s arrangement and the boys who were coming with his brothers.  And he shared information obtained from his brother with Ali Shah and telling him a vehicle had been arranged.  And Ali Shah sent him a message at 11:52 pm that “alright, no problem, after they sit in the ship, send me message, we are going to Tsuen Wan.  If the other UEs were not D2’s concern why the discussion between D2 and Ali Shah would include the other UEs?

64.  Then after a missed call at 4:18 am on 13 August 2016, the next message from Ali Shah was at 4:18 am on the same day “Hello, greetings!  Yes sir, what happened, have received any news or not, if (you still) awake send me message, otherwise good night, sweet dream … Bye”.

65.  On 14 August 2016 at around 9:00 am D2 was arrested. Subsequent to that Ali Shah sent a message “Hello” to D2 at 10:42 am and followed by a missed call at 10:42 am. 

(c) 85295315752

66.  D2 said this was his friend “Cookie Shark”.  D2 explained that his friend was enquiring his brother Nawaz’s situation in China.  However, it was clear that the message from “Cookie Shark” on 12 August at 11:19 pm was about “to avoid problem for them being staying outside, they have not paid hotel charges yet and that person also have not reached to them yet …” It was not just about D2’s brother Nawaz. Further why would that “Cookie Shark” so concerned the well-being of all.

67.  D2 replied at 11:28 pm that “they will definitely pick up today, I am in touch with them, they don’t call to avoid from having their number traced, alright, your brothers … as soon as the situation gets well, they will pick, alright, there are policemen going around, that is why they are not taking risk, alright, the person is present there down their building.”

68.  In explaining the Whatsapp messages with “Cookie Shark”, D2 gave evidence that because the situation in China was not good “Cookie Shark” was enquiring about his brother, enquiring if they had left the hotel or not, because if they had, they might have to spend the night outside.  And “Cookie Shark” also wanted him to ask his brother about the payment of the hotel charges.  His reply at 11:28 pm was referring to his contact with his brother and about the people who were to pick his brother in China.  He was informing “Cookie Shark” his brother Nawaz’s situation.

69.  At entry 6, on 13 August at 1:59 am “Cookie Shark” said “Brother today also the work is not done, is there any chance or not?  In Shenzhen is very dangerous place nowadays”.  D2 tried to pacify and replied at 2:27 am that he had sent the money this morning. They were in the hotel and it was not dangerous.  Police was patrolling outside and no raids were being carried out inside the hotels.  If D2’s brother Nawaz was the only concern and the others were unrelated why would “Cookie Shark” sounded so worry and D2 needed to refer to situation of “they”?

70.  D2 gave evidence that the money mentioned here was cash in a sum of $1,000 he arranged to bring over to Shenzhen by a friend.  As his brother Nawaz kept him informed there was police patrolling outside the hotel so he shared it with “Cookie Shark”.

71.  At entry 10, on 14 August 2016 at 7:22 am, “Cookie Shark” called again and asked what happen. At 7:29 am D2 replied “they have arrived in Hong Kong, they are in the ship, after the duty is changed then they take them out”.  The friend requested at 7:30 am “Ok when they arrived to you, then must send me the sms”.  D2 replied “OK” at 7:33 am.

72.  D2 initially gave evidence that he received a call between 7:00 am and 7:30 am, therefore he informed “cookie Shark” his brother was here in Hong Kong at 7:29 am after he made enquiry at 7:22 am.  He was at D1’s residence when he replied “Cookie Shark’s” enquiry.  Again if D2’s brother was the only concern, why would their conversation mentioning “they arrived to D2”?  Further it is noted that the alleged “first call” from a Nepalese in D2’s subsequent evidence, informing him the arrival of his brother Nawaz happened at 7:46 am on 14 August 2016.

(d) Lala

73.  D2 said he shared the matter of his brother Nawaz with his friend Lala.  At entry 3 on 14 August 2016 at 12:23 am Lala asked “any possibility for them to arrive yet or not?” At 12:24 am D2 replied “…they have left the hotel alright, they are going by taxi to that place, with the will of God, with the will of God, today will be done.” And “Will tell you later”.

74.  D2 was arrested around 9:00 am on 14 August 2016.  At entry 10, later at12:00 pm, Lala called and asked “have the boys arrived yet, what happened”.  Again if D2’s brother was the only concern, why would their conversation mentioning “they” and “boys”.

75.  D2 explained Lala was asking about his brother but as Lala knew his brother was contacting him through other people’s phone, Lala could have thought that might be others were also coming therefore Lala referred to them when he asked about his brother.  And further explained that out of respect, they would use “they” when referring to an elder person.   I considered and find his explanations unconvincing.

(e) Home

76.  D2 said he was having conversation with family in Pakistan.  At entries 15 to 18, on 14 August 2016 within the minute of 3:27 am, Home asked D2 what happened and D2 replied “still on the way, when I get to know, will call myself, alright?”  Time being an object was detected moving toward Hong Kong water from She Kou Harbour, reaching Nim Wan and then passed out of Hong Kong water.  Apparently D2 knew his brother Nawaz and the other UEs had already left Shenzhen to Hong Kong.

77.  D2, however, in clarifying the calls with a Nepalese, gave evidence that he was not sure if his brother Nawaz would arrive on 14 August 2016, before he received the call from the Nepalese security guard, he had no idea where and when his brother would call him.  He last received his brother’s call between 5 pm and 7 pm on 13 August 2016, after that he called his brother but his brother did not receive the call.  If D2 was not informed by his brother, he must be informed by others as to the arrival of the UEs on 14 August 2016.

78.  Further the Whatsapp messages sent out by D2 to various people in the early hours on 14 August 2016 showed that he had already learnt by 12:24 am that the UEs had left the hotel for their voyage to cross the border and by 4:27 am the arrival of UEs to Hong Kong and he would be informed when they were taken to a pick up point, and at around 7:30 am he was still waiting for the call to pick up the UEs.  I considered the evidence as a whole and find the only irresistible inference is that at all the material times D2 was not just concerned his brother Nawaz but also the other UEs travelling with Nawaz.

79.  I considered and reject D2’s explanation that the WhatsApp extracted was only about his sharing of the illegal entry of his brother only, and rejected his explanation about the money mentioned in the WhatsApp.  The abovementioned conversations as a whole suggested that D2 was expecting the UEs to arrive Hong Kong in the morning of 14 August 2016.  Apart from the WhatsApp extracted by the services provider, the police also managed to extract call logs from some of the mobiles phones seized.

CALLS BETWEEN THE DEFENDANTS

80.  From the call log record extracted from D1 (64626640) (Exhibit P80a item 15) and D2 (97241486) (Exhibit P80a item 5), D1 and D2 had 2 calls on 13 August 2016 at 19:18 hours and 19:19 hours; D1 and D2 had or attempted to have all together 8 WhatsApp on 14 August 2016 between 1:05:59 hours and 6:05:42 hours.  While D2 attempted to make one WhatsApp to D3 on 14 August 2016 at 1:08:54 hours.

81.  As per D1’s log record between 1 August 2016 and 13 August 2016 there were all together 58 call records between D1 and D2 including missed call while there were 2 calls with D3 on 6 August 2016 and 3 calls on 11 August 2016.

82.  As per D2’s log record of (95429826) (Exhibit P80a item 7) D2 had 2 WhatsApp record with D3 and 1 WhatsApp record with D1respectively on 13 August 2016.  Between 3 August 2016 and 7 August 2016 D2 had 25 WhatsApp records with D3, 16 of which was on 5 August 2016; closely before and after that 16 WhatsApp D2 and D1 had 11 WhatsApp records.  D1 gave evidence he would call D2 once or twice a day and because they had decided to have a party a week ago, he would have called D2 about the party since then.

83.  As per UE3’s log record (923455471069) (Exhibit P80a item 9) between 1 August 2016 and 11 August 2016 he and D3 had 45 call/WhatsApp records.  Further 13 WhatsApp records was found on 13 August 2016 between D2 and UE3’s number, these were between 21:10:55 hours and 23:26:22 hours on 13 August.  That was about 3 hours before the UEs boarded the vessel to Hong Kong. 

84.  UE2’s mobile phone calling record shown that he had called the D2 at 7:38 am on 14 August 2016, and that was a missed call.  Thereafter someone using the Landline of the guard post to communicate with D2 at 7:46 am, 7:56 am and 7:59 am before the defendants were intercepted around 8:30 am.

85.  Further as per D2’s call log record, on 14 August 2016 between 00:00 hours and 08:30 hours there were 78 records in 95429826 and 10 records in 97241486 of which 8 related to D1 and 1 concerned D3 as mentioned above.  Taking into account of the volume of the call/WhatsApp between 1 August and 14 August 2016 and the time of the call/WhatsApp that were made, I considered and reject any suggestion that the calls between the defendants were only calls among friends and unrelated to assisting illegal entry to Hong Kong.

86.  I considered the evidence as a whole and find the only irresistible inference is that D2 was the one in contact with those arranged the UEs to sneak into Hong Kong by sea.  D2 was the one who gave instructions to D1 and D3 and the two acted as instructed.

CONCLUSION

87.  D2 gave evidence and provided proof his relationship with UE1, there was no contrary evidence to that.  I considered and accept their relationship.  However, that one of the UEs was D2’s brother did not cast any doubt on the prosecution case that D2 was a leader of the arrangement.

88.  The Pakistan National Day Party was used as a pretext to explain why the three defendants were together in that early morning on 14 August 2016.  There was no evidence whether the party was called off or continued as scheduled without the defendants.  However, I do not consider the respective defence case, the existence of the party alleged, if so, would cast any doubt on the prosecution case.

89.  I considered and find the prosecution has proved beyond all reasonable doubt that at the time the three defendants got on board the taxi, they intended that to be a round trip, to collect the 3 UEs at the Landfill and come back.  The purpose to go there in fairly early hour on a Sunday morning was to assist someone remaining in Hong Kong illegally. 

90.  I considered and find the prosecution has proved beyond all reasonable doubt that D2 was playing a leading role in that group of three, he was a knowing, willing, and active party to the joint enterprise that assist the 3 UEs on the morning of the 14 August 2016. 

91.  I considered and find the prosecution has proved beyond all reasonable doubt that the role of D1 was to convey and ensured that the 3 UEs were taken to his home.  D1 was a party to the joint enterprise to assist the 3 UNs’ passage within Hong Kong.  D1 was a knowing, willing, and active party to the joint enterprise that assist the 3 UEs on the morning of the 14 August 2016.  D1 is convicted accordingly.

92.  I considered and find the prosecution has proved beyond all reasonable doubt that the role of D3 was to hold on to the taxi while the other two looked for the UEs nearby.  Once the UEs were located, he got out of the taxi and let D1 and the 3 UEs get in and left by taxi.  D3 was a knowing and willing party to the joint enterprise that assist the 3 UEs on the morning of 14 August 2016.  D3 is convicted accordingly.

93.  I considered and find this illegal operation was carried by a syndicate to arrange and assist the passage of UEs to Hong Kong, to receive the UEs upon their arrival in Hong Kong and then assisted their onwards movement within Hong Kong.  It was a commercial transaction to the benefit of those involved.  The operation was an organized crime involved substantial planning and organization.