HKSAR v. KRISHAN, KUMAR AND ANOTHER

HCMA 451/2019

[2021] HKCFI 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 451 OF 2019

(ON APPEAL FROM WKCC 850 OF 2019)

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REASONS FOR JUDGMENT

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1.  The 1^st Appellant and the 2^nd Appellant were convicted after trial of one count of possession of offensive weapon in public place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245, namely, one golf club and one knife respectively. The 1^st Appellant was the 2^nd Defendant in the trial and the 2^nd Appellant was the 3^rd Defendant in the trial. Both appealed against their convictions. At the end of the day of the hearing of the appeal, I had allowed their appeals against convictions and quashed their convictions. I now give reasons below.

PROSECUTION CASE

2.  It was shortly after midnight on 12 July 2017, when a large group of about 30 to 40 people were seen rushing towards the Tung Chau Street Temporary Market in Sham Shui Po. Fighting erupted, the police intervened and the group dispersed.  According to PW2, 3 to 5 males ran towards him and his attention was focused on the 1^st Appellant whom he said was holding a long object (later known to be a golf club).  He said he saw the 1st Appellant threw the golf club away and continued to run towards his direction.  His evidence was he managed to subdue the 1^st Appellant by grabbing his arms. An important point in cross-examination of PW2 was that he had said there were “arrest forms” in Sham Shui Po Police Station which was used by PW1 when he arrested the 1^st Defendant but he did not use it.  But it subsequently emerged during the trial that the Prosecutor on fiat accepted, or rather conceded, that no such “arrest forms” were in existence in Sham Shui Po Police Station at the material time.  And it is because of this and that the learned Magistrate had acquitted the 1^st Defendant in the case because of the unreliability of the evidence of PW1 who claimed he had used such form.

3.  PW3, the 3^rd police officer, claimed that he saw the 2^nd Appellant holding a beef knife and that the 2^nd Appellant had thrown away the beef knife and PW3 gave chase without losing sight of the 2^nd Appellant, and finally arrested the 2^nd Appellant at a set of traffic lights. 

4.  During the cross-examination of PW3, he claimed he could not remember the 2^nd Appellant’s name and needed to check his notebook.  But he did not have the notebook with him in court and adjournment was made, and during the adjournment, in front of the interpreter and the Prosecutor on fiat, PW3 received 2 calls on his mobile telephone, apparently from the officer-in-charge of the case who asked him where the notebook was and that they did not have it.  When he was cross-examined in court subsequently about this, PW3 initially claimed he was unable to retrieve the call record and the court interpreter assisted him to do so.  Then PW3 claimed that the connection was so bad that the conversation he had was something about a “notebook”.

5.  The Appellants did not give evidence nor call any witnesses. 

MAGISRATE’S FINDINGS

6.  The learned Magistrate, in relation to the 1^st Appellant, focused his attention on the identification evidence against the 1^st Appellant by PW2.  He said that the evidence of PW2 as to the arrest form, did not affect PW2’s credibility and reliability as a witness.  In paragraph 47 of the Statement of Findings, the learned Magistrate found that PW2 indeed told the lie in court about the presence of “arrest form” in Sham Shui Po Police Station.  However, he concluded that the lie was told, not to strengthen his case against the 1^st Appellant, and therefore, this lie did not “undermine his overall evidence”.  And that paragraph 49, the learned Magistrate found that the evidence of PW2 “under cross-examination was not shaken”.  And at the end of the day ruled that PW2 was an honest and reliable witness and accepted his evidence in full. 

7.  Although the learned Magistrate felt that PW2’s evidence was not shaken in cross-examination, however, one cannot ignore the fact that he did find PW2 did lie in his evidence in court, under oath, in relation to the presence of arrest form in the police station.  In a case of this nature, when the credibility of a police officer is in issue, and the lie he told in court was so blatant that the Prosecutor on fiat had actually conceded that there was no such forms, than it must impinge upon the credibility and reliability of his evidence overall.  So I cannot understand how the learned Magistrate could dismiss this crucial evidence from his mind when considering the reliability of the evidence of PW2. 

8.  In dealing with the evidence of PW3, the officer who arrested the 2^nd Appellant, the learned Magistrate found that although PW3 had, improperly, during a break in his testimony when he was outside court received phone call on his mobile phone about the notebook, that nonetheless did not affect his overall credibility or reliability.  The learned Magistrate felt it was improper for PW3 to receive the telephone calls during a break in his testimony, however, the learned Magistrate said at paragraph 65:

“65. When PW3 was asked to hand up his mobile phone so that the call history could be checked, he claimed that he did not know how to retrieve the call history on his own mobile phone. Even if this was a lie, it was not told to establish or strengthen the case against the 3^rd Defendant.”

9.  The learned Magistrate then went on in the next paragraph to consider that PW3’s overall evidence was clear, direct and that there were no material inconsistencies.  At the end of the day, he found that PW3 was an honest and reliable witness and accepted his evidence in full.   

10.  Again the learned Magistrate seemed to have found that PW3 lied in the witness box when he was under oath when he claimed that he did not know how to retrieve the call history on his own mobile phone. If this was the case, then surely it must be incumbent on the learned Magistrate to consider whether PW3’s overall credibility and reliability were in any way affected by this.  Just because the learned Magistrate had considered that this lie was not told to establish or strengthen the case against the 2^nd Appellant,does not mean that it should be ignored when considering his overall credibility and reliability. 

APPEAL

11.  In court, a main Ground of Appeal on behalf of both Appellants was that the learned Magistrate had erred in finding that the only issue in dispute was that the identity of the Appellants.  And that the conviction of the 1^st Appellant was unsafe and unsatisfactory because PW2 was found to have told the lie in court, yet the learned Magistrate found that he was an honest and reliable witness.  Also on behalf of the 2^nd Appellant, the main ground of appeal is that his conviction was unsafe and unsatisfactory because during his testimony, he had received phone call from his colleague on his mobile telephone during a break in his testimony and that was found to be improper by the learned Magistrate, and also the fact is that he lied in court when he claimed he did not know how to retrieve the call records on his own mobile telephone, which the learned Magistrate seem to have brushed aside and found that it did not affect the overall credibility and reliability of PW3. 

12.  Mr Kuan argued that matters of credibility and reliability of witnesses are generally within the ambit of the trial Magistrate as he had the advantage of seeing the witnesses give evidence and a court on appeal would generally not interfere with the learned Magistrate’s finding, unless the finding was “an affront to logic or common sense or is inherently improbable”.

13.  While Mr Kuan’s submission is generally correct, however, in this case, when the lies were so blatant are made under oath by police officers, then the court should not easily brush such dishonesty aside without properly assessing these lies as against their overall credibility, particularly in this case where the evidence against the Appellants were based on their identifications alone.  

14.  After consideration of the evidence and the submissions of counsel, I am not satisfied that the prosecution can safely rely on the uncorroborated evidence of PW2 and PW3.  I consider that in light of the matters that I have mentioned above, the doubts created would be to the benefit of the Appellants and I consider that, therefore, that the convictions were unsafe and unsatisfactory.  So their appeals were allowed in these circumstances.