HKSAR v. USAMA BIN TARIQ AND ANOTHER

DCCC 194/2018

[2019] HKDC 1184

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 194 OF 2018

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Reasons for Verdict

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1.  The case originates out of an argument between teenagers about insults and prank calls leading to the victim being kidnapped, is the expression here, and told to stop bothering a girl at his school. PW1 is the victim; the 1st and 2nd defendants are the alleged kidnappers.

2.  There is no shortage of charges arising out of this incident:  there are five in total.  Whether there need to be five is another matter. 

3.  The 1st defendant faces a charge of common assault, criminal intimidation, assault occasioning actual bodily harm, and, finally, kidnapping of both the victim PW1 and another person.

4.  The 2nd defendant faces a charge of assault occasioning bodily harm and also been involved in the kidnapping with the 1st defendant.

5.  Prosecution rely on PW1, the victim; two eyewitnesses of the kidnapping; and video recorded interviews made by both defendants, which place them at the scene of the kidnap.

6.  The defendants deny the charges.  They say that the prosecution witnesses exaggerated what was simply a request for him to stop harassing a female schoolmate, to whom the 1st prosecution witness and his friend had been making prank calls.

7.  The major issue in the case is simply the reliability of the first prosecution witness and whether he can be relied on to evidence these charges.

8.  The prosecution case unfolded as follows. 

9.  The 1st prosecution witness at the time and still is a schoolboy.  At the time of the incident in 2017, he was 15 years old. On the, I think, 5th September 2017, he went to school at Bethel High School in the New Territories.  He knew a girl called “Ayesha”.  Ayesha thought that the first prosecution witness looked strange and she told him so, and clearly the 1st prosecution witnesses took offence or umbrage at this description, and he managed to obtain her phone number and decided, having done that, to make prank calls to her as a revenge for the insult.  He made a large number of calls, a form of harassment of this young girl.  Ayesha obviously did not appreciate this attention from the 1st prosecution witness.  Eventually, she confronted him about it, having heard it was the 1st prosecution witness.  He denied it to her.

10.  On the way home from school, he received a call from a person who was said to be a friend of Ayesha, and then from Ayesha’s boyfriend.  Eventually, the boyfriend is said to have come on the line and sworn at him.  He said he also received threats via WhatsApp.  Prosecution say that the 1st defendant is Ayesha’s boyfriend.  Eventually, after a lot of evidence, the position was that PW1 agreed to meet with Ayesha’s boyfriend after school the next day.

11.  The next day after school, PW1 said that the boyfriend pulled up in a car, came out of the car, and hit him.  PW1 himself never identified anybody but it is the prosecution case that this was D1.  PW1 knew this person as Usama, appears to have known him reasonably well and seen him in the past.  He was never identified.

12.  D1 allegedly hit PW1 with a metal bangle on the head while this was taking place.  He was accompanied and said to be assisted by the 2nd defendant, whom the 1st prosecution witness did identify.  PW1 was said to be pushed into the car by D1, assisted by D2.  Then, PW1 was questioned about making calls to the girl and he continued to deny it.

13.  2nd defendant is said to have hit him, and that is where the charge that he faces, the 2nd charge, arises from, using his elbow. 

14.  Eventually, PW1 admitted making the calls.  PW1 was taken in the car, which had a driver, to a red container and detained there.

15.  Now, in that location, it is said that the 1st defendant threatened to hit PW1 with a baseball bat and it also became apparent as the afternoon went on into evening, as a result of various calls to and fro, that PW1’s kidnapping had been witnessed and the police had became involved. Clearly this had never been intended by anybody, and it provided a complication.

16.  Ayesha came over with friends.  Apparently they were walking around in the New Territories area at some point - together with PW1, it appears.  At some point the 1st defendant is said to have hit or attacked PW1 with a baseball bat.  That originated yet another charge. Eventually, PW1 was released.

17.  PW1 was, certainly at the time of the alleged kidnapping, accompanied by a person called “Y”.  We had the opportunity of hearing from Y.  He refused to give any evidence when called, so he was no help to anybody.

18.  Now, there were other people present at the time that the 1st prosecution witness was put into the vehicle. 

19.  PW2 was in the area.  He saw Southeast Asian men, who must have been PW1, being bundled into the car, which must have been the same car, and being hit.  He saw in fact two Southeast Asian males pull PW1 into the car.

20.  PW4 is an ambulance driver.  He saw the same incident.  He saw two Southeast Asian males drag another onto a vehicle, punching and kicking him.  He reported this to the police and that is where the investigation to the matters started.

21.  Besides this evidence, there was evidence of video recorded interviews made by both D1 and D2.  They were what I think is described as mixed statements. 

22.  D1 admitted he was Ayesha’s boyfriend and a friend of D2, that he had gone to PW1’s school to talk about the phone calls made to Ayesha, that he tried to hold PW1 to get him to go into the car, that they had gone to the container, that PW1 later was allowed to leave, there had been no assault.

23.  D2 said he was D1’s friend, that he went with D1 in the car to PW1’s school.  D1 had grabbed PW1 and pulled him onto the car. He, D2, had helped move PW1 to the car.  PW1 had struggled and they had gone to the container.

24.  Both the 1st and 2nd defendants opposed admission of the video recorded interviews at special procedure hearings, in which they gave evidence in their defence. 

25.  Neither the 1st or 2nd defendant gave evidence or called evidence on the general issue.

26.  As far as the legislation or the case is concerned, the prosecution bring this case and they are required to prove it beyond reasonable doubt.  They say they can do that on the basis of the evidence they have.

27.  The most serious charge, the 5th charge, is kidnapping.  That requires a number of elements to be proved, a common law offence.  It involves four ingredients:  the taking or carrying away of one person by another, by force or fraud, without the consent of the person so taken or carried away, and without lawful excuse. 

28.  The 1st defendant also faces a charge of criminal intimidation, and that is defined as a person who threatens another person with any injury to the person, reputation or property of such other person, or with any other illegal act with intent to alarm or threaten the other person shall be guilty of an offence.

29.  As far as the assaults are concerned, the prosecution charges these assaults on the basis they were a completion of a battery.  In other words, the person intentionally or recklessly caused the complainant to apprehend and receive immediate unlawful personal violence and to sustain unlawful personal violence.

30.  In respect of two of the charges, they are charged as assault occasioning actual bodily harm, which requires the prosecution to prove there is some actual bodily injury to the victim.

31.  I think it can simply be stated that were the 1st prosecution witness’ evidence to be accepted, then it would be capable of proving these charges, possibly with the caveat as to whether actual bodily harm could be seen to have flowed from the assaults or not in relation to the 2nd and 4th charges.

32.  I will deal with the issues.

33.  The first issue that I had to deal with is that both defendants contest the admissibility of their video recorded interviews.

34.  1st defendant on the basis that he was assaulted and threatened and induced that if he made a statement he could go home.  It is also said his rights were not explained to him, also that he could not read or write Chinese, that a Pol 153 was only explained to him in its Chinese version, because the statements themselves were conducted in Chinese.

35.  2nd defendant on the basis he was only 17 years of age at the time of the interview and no responsible adult was present. Before the interview he was told that he would be released if he agreed to the interview and agreed to repeat what he was told to say, that he was coached as to what to say.  Also, he could not read or write Chinese, and the Pol 153 forms were only explained to him in that language.

36.  Both defendants’ interviews were conducted in excess of 24 hours after their arrest and in both interviews an Urdu interpreter was present but he was never employed to provide any translation. In fact, there was no Chinese-to-English interpreter, so there could not have been an English-to-Urdu interpretation, so the interpreter could never have been used in these proceedings.

37.  Police said he was there to assist D1 and D2, if they had difficulties, but was not an official translator, but he was never called on in any of the interviews.

38.  Both defendants were interviewed by the same officers in the video interview format.  The two video recorded interviews were closely related but I did consider them separately.  I had the opportunity of viewing the appearance of the two defendants in the course of the video interviews.

39.  To the 1st defendant’s issue, in respect of the issue of credibility - because an issue of credibility certainly did arise; the police officers denied any improprieties - I found the interviewing officers to be credible.  I did not make that conclusion about the 1st defendant.  He was not credible.

40.  The allegations of assault in fact were clearly fabricated and belied by the record of interview where the 1st defendant appeared comfortable and ready to tell his side of the story.

41.  The officers, as I said, denied the allegations and said D1 had in fact read the Pol 153 form produced and read part of it in the interview.  D1 had said this had been rehearsed.  I did find that his complaint that he was unable to read the Pol 153 to be simply untrue and again belied by him by his reading part of the interview.  I find his explanation that he was coached to do this to be inherently unlikely and I rejected D1’s evidence in its totality.

42.  Based on the evidence, I accepted the obviously voluntary nature of the video recorded interview, which can be seen from a viewing of the interview.  I accepted it into its evidence, its voluntariness being proved to a criminal standard.  I found there is no residual grounds to exclude the interview.  The delay of 24 hours before interviewing was mainly due to administrative reasons to obtain the video recording interview suite.  I did not find defendants prejudiced by that delay.

43.  As far as the 2nd defendant’s interview is concerned, he was younger than the 1st defendant, but not a juvenile requiring an adult’s presence.  Again, in terms of credibility, I found the interviewing officers to be credible, reliable, truthful. 

44.  I found the 2nd defendant to be untruthful.  He had lied about his ability to understand the Pol 153 Chinese.  He also read a part of it in his interview, and I found that the 2nd defendant’s allegation of impropriety inducement to be fabrications.  He was not prejudiced by the delay in the interview as well.

45.  The video recording shows him to be conducting the interview voluntarily and in full knowledge of his rights and as a suspect.  I found there is no basis on which to exclude his statement.  The interview was clearly conducted voluntarily and is admissible and proved so in both cases, both defendants, beyond reasonable doubt.  So I admitted the 2nd defendant’s statement into evidence.

46.  In assessing the 2nd defendant’s credibility and the reliability of what he said, I did bear in mind that he is of clear record, and considered both that in relation to the credibility of his admissions and the reliability of any statement made by him during the course of interview.

47.  I am left with the general issue to determine now, and my view of the evidence relied entirely upon an assessment of the reliability and credibility of the 1st prosecution witness.

48.  On the general issue, as I said, the only live issue is PW1’s credibility and reliability as a witness.

49.  The defence pointed to a number of inconsistencies between PW1’s evidence and his earlier statement.  I was specifically referred to five in total, that he had said that he was initially telephoned by somebody in relation to the matter who claimed to be a police officer, that he was hit in the middle of the back of the head with a metal bangle, which caused him to scream, that he had been told he would be left in front of a dog, that he was shown a black baseball bat and told he would be taken inside, hung up and down and beaten, and he was threatened with the baseball bat and told many people had suffered inside the room, and he was hit in the leg with the baseball bat, which caused swelling.

50.  It is said that he failed to mention the alleged assault with the baseball bat and the subsequent swelling of his left leg to a doctor who saw him after the incident, and said the explanations for failing to mention these significant matters to the police, who would record them in the statement, should be rejected.  It is said that if PW1 had said he really told the police that he had been threatened with a baseball bat, that would have been recorded in the statement.

51.  Furthermore, if he had reported the injury to Dr Woo, it would also have been recorded by Dr Woo in the medical report.

52.  These kind of what I think can be described as inconsistencies are quite normal in the evidence of people such as PW1.  He was a schoolboy at the time.  He was recalling events at a later time.  He did say, as the defence have pointed out, that he did say these things to the interviewing officer, who told him it was not necessary to put them in the statement.  This was denied.

53.  I assessed the 1st prosecution witness as being an immature witness trying to explain a discrepancy.  As I say, it is a typical response from such a witness.

54.  Although it did cast some -- I would not describe it as doubt, but some aspersion on his evidence, it was clear there was some need for caution and need to look for some form of confirmatory evidence in respect of PW1.

55.  However, clearly, confirmatory evidence did exist in this case.  Both the other witnesses who were present at the scene of the kidnapping were able to confirm material aspects of PW1’s evidence, particularly PW4.  Both of these saw what must have been the 1st prosecution witness being assaulted and dragged into the car, completely in accordance with what he had said happened.

56.  As I said, it was also said by counsel, quite properly, that neither of these witnesses could provide any identification of the 1st and 2nd defendants.  However, the combination of time and location, and both of the 1st and the 2^nd defendants saying in their records of interview they were there clearly confirms PW1’s evidence that he was assaulted and dragged into the car by the 1st and 2nd defendants, something which he did say quite clearly in his evidence.

57.  I am therefore sure that what PW1 has told me is truthful, especially truthful when he tells me that he was threatened by the 1st defendant, that he was assaulted by the 2nd defendant, and that he was further assaulted in the container during the course of that afternoon, and, in making this assessment, I bear in mind all the evidence of the case, including what the 1st and 2nd defendants had said in their own records of interview.

58.  From my finding as to PW1’s evidence, his evidence does establish to a criminal standard the guilt of both the defendants certainly on the 5th charge.  Whether that extends to the person Y is another matter, as he never gave evidence.  So what I will do in respect of the 5th charge is convict both the 1st and the 2nd defendants in respect of the kidnapping of the person described as “X”.

59.  I also find there is evidence of the common assault against the 1st defendant on the 1st charge and of the assault by the 2nd defendant on PW1 in the 2nd charge, although I do agree with the defence that the tenderness described would not constitute an actual bodily harm as charged but does constitute an assault.

60.  I also find that PW1 was threatened and that forms the basis of the criminal intimidation as found in the 3rd charge.

61.  And, fourthly, that the PW1 was further assaulted and that forms the basis of the 4th charge.  Again, the injury described does not establish an actual bodily harm, so the 1st defendant will be convicted of common assault in respect of that charge.

62.  So, in respect of the charges, the convictions will be as follows:

(1) first, Charge 1, 1st defendant, convicted of common assault;

(2) 2nd charge, 2nd defendant convicted of common assault;

(3) 3rd charge, 1st defendant convicted of criminal intimidation;

(4) 4th charge, 1st defendant convicted of common assault; and

(5) 5th charge, both defendants convicted of kidnapping.

63.  That is the finding of the court.