HKSAR v. UMER FAROOQ

DCCC 160/2024

[2025] HKDC 816

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 160 OF 2024

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REASONS FOR VERDICT

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1.  The 2^nd Defendant had pleaded not guilty to Charge 7, i.e. Doing an Act or a Series of Acts Tending and Intended to Pervert the Course of Public Justice, contrary to Common Law and punishable under section 101I(5)  of the Criminal Procedure Ordinance (Cap 221). He was jointly charged with the 1^st and 3^rd Defendants, who had pleaded guilty.

2.  Simply stated, the Prosecution case is that the 1^st to 3^rd Defendants have agreed that a false representation be made to the police that the 1^st Defendant was the driver of a private car NA6660 (hereinafter referred to as the “Vehicle”)  which was involved in a traffic accident outside West Wing of Justice Place on Lower Albert Road (hereinafter referred to as “the Scene”).

3.  Parties agreed the entirety of the Prosecution case by way of Admitted Facts.  It is not in dispute that on the day in question, i.e. 28 July 2023, the 3^rd Defendant was the registered owner of the Vehicle.  The 3^rd Defendant, apart from being the driver in question when the accident occurred, had used the Vehicle when its vehicle licence had expired on 13 July 2023, and that the third party insurance does not cover situations where the driver does not hold a driving license or had been disqualified.  It was also not in dispute that the 3^rd Defendant was disqualified from driving from 11 May 2023 for 6 months.

4.  On 28 July 2023, at around 5:15 am, the 2^nd Defendant drove the Vehicle with the 3^rd Defendant and an Indian male (hereinafter referred to as “X”)  on board to Central.  The Vehicle was parked outside a building, and the 3 of them went inside a restaurant at the said building at around 5:18 am.  At around 6:50 am, they left the restaurant and boarded the Vehicle, with the 3^rd Defendant in the driver’s seat, X at the front passenger seat and the 2^nd Defendant at the rear passenger seat.

5.  At around 7 am, the Vehicle was traveling downhill and making a right turn on Lower Albert Road, when it suddenly swerved to its left onto the pedestrian pavement, and crashed onto a security kiosk of West Wing, Justice Place.  The 2^nd and 3^rd Defendants and X left the Vehicle immediately, fled towards the direction of Wyndham Street, and boarded a taxi at Queen’s Road Central at around 7:05 am.

6.  At around 7:16 am, the 2^nd and 3^rd Defendants and X alighted the taxi outside a carpark at Ka Wai Chuen in Hung Hom (hereinafter referred to as “the Carpark”).  The 2^nd Defendant and X waited at the Carpark, while the 3^rd Defendant went home at Wuhu Street nearby at around 7:19 am.  At around 7:28 am, the 3^rd Defendant and his younger brother the 1^st Defendant joined the 2^nd Defendant and X at the Carpark.  At about 7:29 am, the 1^st to 3^rd Defendants and X left the Carpark together.

7.  At around 7:30 am, the 1^st and 2^nd Defendants boarded a taxi near the Carpark.  At about 8:05 am, the taxi reached Ice House Street near the Hong Kong Diamond Exchange Building, and the 1^st and 2^nd Defendants alighted.  They walked towards Lower Albert Road, with the 1^st Defendant walking ahead.  At about 8:08 am, the 2^nd Defendant made a U-turn and walked towards Queen’s Road Central.

8.  At about 8:10 am, the 1^st Defendant approached the police on Lower Albert Road in the vicinity of the Scene.  The 1^st Defendant made the representation to the police officers present that he had driven the Vehicle from his residence in Hung Hom to Lan Kwai Fong in the early hours of that day and had parked the Vehicle in Lan Kwai Fong, that he was the driver of the Vehicle, and had lost control of the Vehicle at the time of the accident.  He also stated that he had fled after the accident, and had now come back to face the consequences. 

9.  At 12:15 pm, the police arrested the 1^st Defendant for the offences of dangerous driving and criminal damage.  At 9:45 to 10:15 pm, the police took the 1^st Defendant to the 1^st and 3^rd Defendants’ residence for house search.  The 3^rd Defendant was not at home, and the key of the Vehicle was found at the house search. 

10.  The 2^nd Defendant surrendered to the police at 2:40 pm on 29 July 2023.  He was arrested for conspiracy to pervert the course of justice.  The 3^rd Defendant surrendered on 31 July 2023, and was arrested for conspiracy to pervert the course of justice and traffic related offences.

Case Analysis

11.  I bear in mind that the Prosecution has the burden of proving all elements of the offence beyond reasonable doubt.  The 2^nd Defendant does not have the burden of proving his innocence.  The 2^nd Defendant has a clear record, and I shall bear that in mind when assessing his propensity to commit crime.  He has elected not to give evidence, and I shall not draw any adverse inference from that fact.

12.  The legal principles concerning the offence of perverting the course of justice, and conspiracy, are clear.  In HKSAR v Wong Chi Wai(2013)  16 HKCFAR 539 at pp.553-554:

“An attempt to pervert the course of justice is ‘the doing of some act which has a tendency and is intended to pervert the administration of public justice.’ The actus reus is thus the doing of the act with the prohibited tendency and the mens rea is the intention to pervert the course of justice.”

13.  The offence is committed even where the act with the prohibited tendency does not actually result in interference with the course of justice.  A person’s conduct has a tendency to pervert the course of justice if it has a tendency towards impairing or preventing the exercise of the capacity of a Court or competent judicial authority to do justice in curial proceedings. 

14.  To prove that a defendant intended to pervert the course of public justice, it is necessary to prove that he knew that his conduct would have or that he intended it to have a tendency to pervert the course of justice in relation to the curial proceedings in question.  Where his conduct has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act.

15.  The Prosecution is advancing its case on the basic form of joint enterprise, which involves the co-adventurers simply agreeing to carry out and then executing a planned crime, having a common purpose, understanding or agreement.  The understanding or arrangement need not be express and may be inferred from all the circumstances.  Guilt will be established under such circumstances regardless of the part that each has played in the conduct that constitutes the actus reus, and therefore is not dependent on the 2^nd Defendant sharing physical performance of the actus reus (see HKSAR v Chan Kam Shing (2016)  19 HKCFAR 640).

16.  The 2^nd Defendant was the person who initially drove the Vehicle to Central, after which the 2^nd and 3^rd Defendants and X attended a restaurant in the small hours of around 5 am.  They stayed at that restaurant for about 1.5 hour, before the 3 of them left in the Vehicle with the 3^rd Defendant being the driver.  The 2^nd Defendant was the rear seat passenger of the Vehicle at the time of the accident. 

17.  The Defence suggests that the 2^nd Defendant might be drunk, or might have been injured in the accident.  The Court is of the view that there was no evidence of such.  From the CCTV outside the restaurant, despite him appearing to be tired and a little unsteady with his steps, he was able to walk, and the Court cannot speculate as to the cause of the said unsteadiness.  He and the others were out in the early hours of around 5 am, and it was 6:50 am when they left the restaurant.  The said appearance of the 2^nd Defendant could have been caused by a variety of factors, for example fatigue from being awake in the small hours.  There is also no evidence before the Court that he had consumed alcohol at anytime prior to the accident.  The same applies to the suggestion of him being injured, with even less strength to the suggestion as he was very agile in the CCTV footages of the flight from the Vehicle and the subsequent events at the Carpark and upon return to the vicinity of the Scene. I am of the view that the suggestions of him being drunk or that of him being injured from the accident are not supported by the evidence available, and therefore the Court does not have to consider such possibilities.

18.  But even assuming that the Court has to consider such possibilities, the Court is of the view that having consumed alcohol or being injured is one matter, but having consumed so much alcohol or having the injuries affecting the 2^nd Defendant to such an extent that he did not know he had travelled back from Hung Hom to Central, or why he had done so, is another matter. 

19.  Firstly, even assuming he had consumed alcohol at the restaurant or that he had been injured in the accident, he left the restaurant at about 6:50 am, and after the accident he was able to flee without difficulty from the Vehicle at around 7 am.  It can be seen from the CCTV footage near the Scene that he had alighted the Vehicle closely behind the others.  He was swift in his actions, and there was no sign of him being drunk or injured (See P3(23)  Screen capture of the CCTV footage).  He was able to follow the 2 others from Lower Albert Road to Ice House Street, ran through parts of it (see P3(27)), and onto Queen’s Road Central, where they boarded a taxi together.  There was again no difficulty when he alighted the taxi in Hung Hom at about 7:16 am.

20.  Secondly, instead of going home, he waited around for the 3^rd Defendant to go home and to return with the 1^st Defendant.  Thereafter he boarded a taxi with the 1^st Defendant back to Central.  If he wished to rest or to seek medical treatment, he could have remained on Kowloon side, and not to retake the same route again back to Lower Albert Road, the vicinity of the Scene.  He would not have done so if he had been drunk or been injured to the extent as to affect the mens rea in his case.

21.  The Defence also suggests that the 2^nd Defendant might have lost something in the Vehicle, and had went back to retrieve it.  There is no evidence to suggest such a possibility, and therefore there is no need for the Court to consider it.

22.  As for the Defence suggestion that the 2^nd Defendant might have been curious about the aftermath of the accident, or he wanted to return to the Scene to account for his role as a passenger, the Court is of the view that it is unreasonable.  He was a mere passenger, and there was no duty on him to volunteer assistance to the authorities.  There was nothing to be curious about, he was conscious when he escaped from the Vehicle, he knew what had happened. By approaching the police, it would only result in possible revelation of the role of his friend the 3^rd Defendant in the matter.  In any event, his action of suddenly taking a U-turn on Ice House Street, instead of going to the police at the Scene, speaks the exact opposite of the Defence suggestion. I do not accept that as a possibility of what had happened.

23.  There was also no evidence supporting the Defence suggestion that the 2^nd Defendant had been threatened to return to the vicinity of the Scene.  This suggestion, as with other Defence suggestions, enters the realm of speculation which the Court must not take part in.

24.  I am of the view that, taking the relevant facts which are not in dispute:-

(a)  the 2^nd Defendant had spent at least 2 hours with the 3^rd Defendant (from around 5:15 am when the 2^nd Defendant, the 3^rd Defendant and X left the Vehicle until about 7:19 am when the 3^rd Defendant left the 2^nd Defendant and X and went home), when the 3^rd Defendant was wearing the clothes he was wearing at the time of the accident, and which were worn by the 1^st Defendant later on during the trip from Hung Hom to Central and the vicinity of the Scene;

(b)  the 2^nd Defendant did not leave after arriving Hung Hom at about 7:16 am, and instead stayed at the Carpark until about 7:29 am with X, and during some part of the said period with the 1^st and 3^rd Defendants also present;

(c)  there was some conversation within the group of people comprising of the 1^st to 3^rd Defendants and X during the time stated in (b)  hereinabove;

(d)  the 2^nd Defendant having at around 7:30 am boarded a taxi from Hung Hom back to Ice House Street with the 1^st Defendant who was wearing the clothes earlier worn by the 3^rd Defendant at the time of the accident;

(e)  after alighting from the taxi, the 2^nd Defendant walking not far behind the 1^st Defendant for about 3 minutes (from about 8:05 to 8:08 am)  on Ice House Street towards Lower Albert Road and appearing to be talking on the phone on the way; and

(f)  the 2^nd Defendant suddenly making a U-turn on Ice House Street towards Queen’s Road Central.

25.  I am of the view that prior to leaving from Hung Hom to Central with the 1^st Defendant, the 2^nd Defendant must have known that the 1^st Defendant was wearing the clothing that the 3^rd Defendant had worn at the time of the accident.  I am also satisfied that armed with that knowledge, the 2^nd Defendant’s decision to remain in the Carpark during the conversation of certain persons in the group which included the 1^st to 3^rd Defendants and X, and to board a taxi with the 1^st Defendant shortly after the 1^st and 3^rd Defendants came to the carpark together, was the result of a common purpose, agreement or understanding with the 1^st and 3^rd Defendants, that the 1^st Defendant shall approach the Scene and claim to be the driver at the time of the accident, and that the 2^nd Defendant’s role was to accompany the 1^st Defendant on the taxi and to a location in the vicinity of the Scene, so as to guide the 1^st Defendant who had not been present at the accident.  The 3^rd Defendant’s role was to lay low and avoid attending the Scene, as can be demonstrated by not boarding the taxi back to Central, and not being at his residence when the police arrived later that day, and leaving the Vehicle’s key at his home.

26.  The Court is of the view that the fact that the 2^nd Defendant was walking behind the 1^st Defendant does not negate from the above conclusion, as one could guide by means other than walking in front.  The fact that the 2^nd Defendant kept talking on the phone along the way when he and the 1^st Defendant were walking towards the direction of the Scene, combined with the other facts not in dispute, indicate a certainty that he was not wandering around, and that the route of his walking had a sense of purpose, the purpose of guiding the 1^st Defendant to the vicinity of the Scene. 

27.  The Court is also of the view that by alighting in the vicinity but not yet on the street of the Scene, and the U-turn on Ice House Street after walking for 3 minutes simply prove beyond reasonable doubt that the 1^st and 2^nd Defendants were to alight some distance away from the Scene, and that the 2^nd Defendant shall guide the 1^st Defendant to the direction of the Scene from the back, and for the 2^nd Defendant to leave the 1^st Defendant to deal with the claiming as driver of the Vehicle at a suitable time.  As stated above, there is no other reasonable possibility that the 2^nd Defendant should return to Central and walk in the vicinity of the Scene again. 

28.  I am also satisfied that the actions and conduct of the Defendants had the manifest tendency to pervert the course of public justice.  I am satisfied that the 2^nd Defendant, together with the other Defendants, intended the actions and conduct of the Defendants to have the tendency to pervert the course of public justice, i.e. to allow the 3^rd Defendant to escape sanction for his criminal behaviour which includes the dangerous driving which caused the accident.

29.  I am therefore of the view that the Prosecution has proved all elements of the offence beyond reasonable doubt.  The 2^nd Defendant is therefore convicted.