HKSAR v. AISHPREET SINGH AND ANOTHER

DCCC 419/2024

[2025] HKDC 514

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 419 OF 2024

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REASONS FOR VERDICT

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1.  D1 and D2 appeared before me each charged with a separate Conspiracy to assist the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a)  of the Immigration Ordinance, Cap 115, and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  Particulars of Charge 1 are that D1, on or about 28 October 2023, in Hong Kong, conspired with other person(s)  unknown to assist the passage within Hong Kong of an unknown number of unauthorized entrants.

3.  Particulars of Charge 2 are that D2, on or about 28 October 2023, in Hong Kong, conspired with other person(s)  unknown to assist the passage within Hong Kong of an unknown number of unauthorized entrants.

4.  Both defendants pleaded not guilty rendering a trial of both necessary.

Prosecution case in brief

5.  On 28 October 2023, between 8 am and 2:05 pm, 28 unauthorized entrants to Hong Kong were arrested by the police at various points on Po Toi Island, Stanley.  On the same day, at about 1640 hours, D1 and D2 were seen chatting with each other at the pier of Po Toi Island.  They were arrested.

6.  Both D1 and D2 made admissions (in Punti)  under caution that they were going to assist the passage of unauthorized entrants within Hong Kong.

7.  D1 was found in possession of cash of $12,057, a car key, and 2 mobile phones.

8.  D2 was found in possession of cash of $7,406, 2 car keys, and one mobile phone.

9.  Both D1 and D2’s private cars were found at Stanley.  In addition, 3 mattresses were found inside D1’s car.

Defence case (special issue)  in brief

10.  Neither defendant elected to call evidence during the special issue. From the way in which the prosecution witnesses were cross-examined, it seems that the case for both defendants was that they were not cautioned and they could not understand and speak Punti.

Issues in the case

11.  The primary issues in the case have become the credibility and reliability of PW1 and PW2 as witnesses.

Relevant law on conspiracy[1]

12.  It is a conspiracy offence for two or more persons to agree with one another to commit a substantive offence.  Before I can convict a defendant of conspiracy, I must be sure:

(a)  That there was in fact an agreement between two or more persons to commit that substantive offence; and

(b)  That the defendant was a party to that agreement in the sense that:

(i)  He agreed with one or more of the other persons referred to in the charge that the substantive offence should be committed; and

(ii)  At the time of agreeing to this, he intended that (in the context of this case)  he should carry it out.

Procedural history

13.  Defence challenged the admissibility of the alleged verbal admissions of the two defendants assuming they were made.  This special issue was dealt with by way of the alternative procedure.

14.  Prosecution called two witnesses, namely PW1 WPC 27436 (Arresting officer of D1), and PW2 PC 26090 (Arresting officer of D2).

15.  After prosecution closed its case on the special issue, defence made no half-time submissions.  I ruled that there was a prima facie case on the special issue.  Neither defendant elected to give or call any evidence.  After I have heard oral submissions from both sides, I ruled that the alleged admissions were inadmissible.  The reasons for the ruling is contained in the Appendix.

16.  After prosecution closed its case on the general issue, defence made no case submissions in relation to both charges.  Prosecution did not resist the application of no case.  After considering the remaining evidence, I agreed there was no case for either of defendants to answer to the respective charges.

Summary of prosecution evidence

PW1 WPC 27436

17.  On 28 October 2023, at 1640 hours, at Po Toi Island Pier, PW1 in uniform saw D1 and D2 together talking to each other.  Since her commander had said that there were still illegal immigrants (“IIs”)  at Po Toi Island, she suspected that they might be IIs.  PW1 approached them with her three uniformed teammates (PW2, Sgt 7386, Sgt 8561)  for enquiry.

18.  PW1 asked D1 if he had identity document by saying in Punti and English, “Do you have passport or any ID document?”  D1 answered in Punti he had document.  D1 showed PW1 his Form 8.  PW1 asked D1 what he was doing there with D2.  D1 said he was there hiking, looking for friends, sightseeing and so on. PW1 felt strange.  So she asked D1 to take out some items from his body to let her see.  D1 took out 2 mobile phones, a black wallet, a car key and a key in silver colour.  PW1 continued to make enquiry.  D1 said he drove to Stanley and he parked his vehicle at parking meter on Stanley Beach Road.

19.  PW1 saw in the black wallet cash of $12,057.  Because D1 was a Form 8 holder, was wearing black long jeans saying he was hiking and he had a car key, and had a large amount of cash, PW1 suspected D1 was connected with a case of IIs.

20.  PW1 then cautioned D1 (at 4:42 pm).  PW1 then asked D1 how he obtained the money on him.  D1 replied, “I am getting $1,000 per head to go to Po Toi to pick up countrymen to return to urban area.”  PW1 asked D1 where were his countrymen.  D1 said, “They were smuggled to Po Toi Island.  I am looking for them.”

21.  As D1 had admitted he was to bring IIs to urban area, PW1 arrested him for Assisting IIs to stay in Hong Kong.  Then PW1 cautioned D1.  D1 said in Punti, “You arrest me and I have nothing to say.”

22.  After arrest, PW1 took D1 back to Police Vessel 56 and set sail to Aberdeen Marine Police Base.  Then they took land transport to Parking Meters on Stanley Beach Road.  Upon arrival at Meter 00675B, PW1 saw a black private car YW524 Toyota Mark X.  PW1 opened the car door with the car key taken from D1.

23.  PW1 searched the car and found 3 mattresses (bed pads).

24.  Under cross-examination, PW1 said at first contact, she did not explain to D1 why she stopped him; reason was that at that time, there were a large number of IIs on the island and she did not know what language D1 and D2 spoke or if they understood her.

25.  However, in her witness statement dated 29 October 2023 which PW1 confirmed was true and accurate, it was written that “… at that time, I intercepted [D1] for enquiry.  I explained to him the reason for interception and enquiry, and then I asked for his identity document.”

26.  The way she explained the reason was this, “According to Police Force Ordinance, Cap 232, section 54(2), why are you and D2 here?” This happened possibly at the same time when D1 showed her his Form 8.

27.  PW1 disagreed that her witness statement was different from her evidence.

28.  PW1 had not asked D1 what language he spoke or whether D1 understood Punti.  She had not asked D1 or D2 what their mother tongue was; in the case of D1, because D1 all along communicated with her in fluent Punti.  She had not asked if D1 could read or write Punti.

29.  At the beginning, at the time of checking D1’s identity document, although she had suspicion he was an II and therefore committing a crime, she had not cautioned him yet because she was still trying to understand the situation from D1.  However, she agreed that she should have.

30.  PW1 concluded that D1 could understand and speak Punti because D1 replied to her in Punti that he had identification document.  He also answered in Punti further questions asked of him in Punti.

31.  When asked why she did not let D1 go after his initial answer that he was there hiking etc, PW1 said she found it strange that while a lot of South Asians had landed on the shores at that time, two Form 8 holders (D1 was stated therein as being of Indian origin)  were on the island where there were few locals; and it happened that she knew that some people of Indian origin were earlier arrested.  That was why she continued her enquiry with D1 by asking what items he had on him.  She said words to the effect, “I suspect you are involved in a case of IIs, so what items do you have on you?  Please take them out.”  These words were not recorded in her witness statement because of her negligence.

32.  PW1 disagreed she had not said those words.

33.  PW1 elaborated on how she cautioned D1 at 4:42 pm, “Today is 28 October 2023 at 4:42 pm, here is Po Toi Island.  I am WPC 27426 xxx, currently attached to Y4 Platoon, PTU KW.  I have found upon search some money on you which I suspect is in relation to an II case, I now caution you, you are not obliged to say anything unless you wish to do so, but whatever you say may be put into writing and given in evidence.”  PW1 agreed that these words of caution were not recorded in her witness statement.  After she cautioned D1, the latter made admissions.

34.  At 4:42 pm, PW2 was about 8 metres from PW1, exact location uncertain. The two Sgts were standing behind her and she could not see them.

35.  After the arrest of D1 at 1645 hours, and after taking D1 on board the police launch, PW1 asked D1 at about 1650 hours his mother tongue/language was.  D1 said in Punti “Punjabi” (later PW1 changed her evidence to “Punjabi” in English).

36.  PW1 agreed that she was changing evidence: she was making additions, she misspoke and made corrections.

37.  PW1 disagreed D1 never said those words in Punti attributed to him after he was cautioned.

PW2 PC 26090

38.  On the same day, at 4:40 pm, PW2 and his three colleagues (PW1, and the two Sgts)  were at Po Toi Island Pier.  He stopped D2 and asked him to produce his identity document.  D2 produced Form 8.  PW2 made enquiries.  D2 talked to him in Cantonese.  D2 was carrying a cross-body bag.  In the bag, there were 2 car keys (one Mitubishi and the other Volkwagen), one mobile phone, and Octopus card and cash of $7,406.

39.  Because there was no driving licence on D2, PW2 asked him where the car keys came from.  D2 alleged that both cars belonged to him; that the Mitsubishi (YK7487)  was parked at Stanley Mound Road.

40.  PW2 asked why he appeared there.  D2 said he went there for hiking (alone).  Upon further questioning, D2 said he ran into D1 in Stanley and they came over together to Po Toi Island to look around.  D2 further changed his story and said he was there to drive his countrymen at Po Toi Island.

41.  At 4:43 pm, PW2 cautioned D2 and asked him what he was doing at Po Toi Island.  D2 replied in Punti, “I get $1,000 per head to come over here to drive my countrymen.  My fellow countrymen in afternoon sneaked into Hong Kong by boat from the Homeland.  I come here to pick them up to drive them out.”

42.  At 4:45 pm, at Po Toi Island Pier, PW2 declared arrest on D2 for the offence of Assisting abetting others to enter Hong Kong illegally and cautioned him.  D2 said, “I have nothing to say.”

43.  PW2 handcuffed D2.  Eventually they left the scene at 5:05 pm to go to Police Launch 56.  They sailed to Aberdeen Marine Police Base and later took land transport to Stanley Mound Road.  There, at Parking Metre 1021B, PW2 found a black Mitsubishi car YK7487.  PW2 opened the car door with the car key taken from D2.  In the storage compartment next to the driver’s seat was found D2’s driving licence and a registration document of the car.

44.  Under cross-examination, PW2 said, before stopping D2, he suspected D2 of being an II.  When asked why he did not let D2 go after seeing his identity document, PW2 said he suspected D2 had illegal items on him, so he performed a search of D2.  PW2 added that before D2 was stopped, D2 upon seeing PW2 turned around and tried to leave.

45.  When PW2 stopped D2, he said in Punti, “Sir, ID card.”

46.  When PW2 was asked if he had explained why he wanted to look at D2’s identification document, he said yes.  He elaborated thus, “Sir, now according to Police Force Ordinance, Cap 232, (later changed by deleting “Cap 232”), Chapter 54 section 2, I ask you to produce ID document and undergo a search.” (later the reference to “producing ID document” was deleted)  These words were not recorded anywhere.

47.  PW2 later changed his evidence to say that he explained to D2 under what Ordinance he performed the search (ie instead of why he wanted to look at D2’s ID document).

48.  When asked after the search, if D2 was still being detained, PW2 initially said D2 was not detained, but he could not go because the process of stop and search was still in progress.  However, later, PW2 changed his evidence to say that D2 was detained.  PW2 explained that he made a mistake in the earlier answer.  Later, PW2 attributed his mistake to a misunderstanding.

49.  Before PW2 stopped D2, he suspected D2 to be an II and to have illegal items on him.

50.  PW2 disagreed D2 had not spoken Punti to PW2.  PW2 only knew after arrest that D2’s mother tongue was Punjabi.

51.  PW2 disagreed D2 was not cautioned in Punti at 4:43 pm.  PW2 disagreed D2 had not made admissions in Punti.

My considerations

52.  After the alleged admissions of the two defendants have been ruled inadmissible, there is insufficient remaining evidence to form a case on either charge against the corresponding defendant.

Conclusion

53.  For the above reasons, I found D1 not guilty of Charge 1, and D2 not guilty of Charge 2.

Appendix

Reasons for the Ruling on Special Issue

1.  Defence objected to the admissibility of the alleged verbal admissions of D1 and D2 (assuming they were made)  on four grounds:-

(a)  The defendants were never cautioned at their first interception;

(b)  The defendants could not speak Punti; Punjabi was their mother tongue; they could not understand what the police officers were saying in Punti;

(c)  The defendants at the scene were never explained their rights and in particular to have a lawyer to consult or advise them;

(d)  There were breaches of the 1992 Rules and Directions in relation to the defendants; and

(e)  The defendants could not read or write Punti; Punjabi was their mother tongue.

2.  At submission time, defence did not really persist on grounds (c)  and (d)  above.  Rather, defence concentrated on attacking the credibility and reliability of PW1 and PW2.

3.  Since the defendants did not give evidence, the primary issue under the special issue was the credibility and reliability of PW1 and PW2.

4.  PW1 WPC 27436 was not an impressive witness.  For a summary of her evidence, see the main body of the Reasons for Verdict.

5.  PW1 kept changing her evidence when there was a need to.  Her evidence in court was inconsistent with her witness statement on the aspect of first stopping D1 for the purpose of eliciting ID document.  PW1 initially said D1 told her at about 1650 hours that his mother tongue/language was “Punjabi” in Punti.  When the court noted the apparent absurdity of this answer and asked PW1 again in a more elaborate way, PW1 changed her answer to say D1 said “Punjabi” in English.

6.  PW2 PC 26090 was not an impressive witness.  For a summary of his evidence, see the main body of the Reasons for Verdict.

7.  Although PW2 changed less of his answers than PW1 did with hers, there were such occasions.  Examples are how he explained his power of stop and search to D2, and his understanding of whether D2 was detained or not.  I believe PW2 was more concerned about his performance in court as a witness than with assisting the court in getting out the truth.  For too many times, PW2 was answering defence’s questions indirectly perhaps as a result of trying to guess why the questions were asked and trying to pre-empt the follow-up questions. In doing so, PW2 unwittingly and unintentionally prolonged the cross-examination process.

8.  At this stage, although I am acutely aware I should not be concerned with whether the admissions attributed to D1 and D2 were made, the credibility and reliability of PW1 and PW2 as witnesses are nonetheless critical as to whether I can safely rely on their evidence (and no other evidence)  to conclude that D1 and D2 were cautioned at the respective times and were respectively dealt with in the way as testified by these two witnesses, in particular, whether D1 and D2 indeed were fully capable of communicating with the officers in Punti.

9.  I have a doubt in that.  The benefit of that doubt goes to the defendants.

10.  As a result, I rule that the alleged admissions of D1 and D2 are inadmissible and they are therefore excluded from the evidence.