HKSAR v. NAWAZ SARFRAZ AND ANOTHER

CACC 150/2020

[2021] HKCA 1709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 150 OF 2020

(ON APPEAL FROM DCCC NO 189 OF 2019

__________________________

__________________________

_______________________________

REASONS FOR JUDGMENT

_______________________________

Introduction

1.  The 1^st and 2^nd applicants, who were D3 and D4 at trial, were convicted after trial by His Honour Judge Dufton (“the judge”) of one charge of conspiracy to wound with intent to do grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance Cap 212 and section 159A and 159C of the Crimes Ordinance Cap 200 on 30 July 2020.  The particulars of offence alleged that:

“Leung Fung Yiu, Pong Ching Lung, Nawaz Sarfraz and Ahmad Faraz, on the 26th day of October, 2018, at “Triangle Motors Limited”, Lot 744RP, Tun Yu Road, San Tin, Lok Ma Chau, New Territories, in Hong Kong, conspired together with other persons unknown to unlawfully and maliciously wound X with intent to do him grievous bodily harm.”

2.  On 21 August 2020 the 1^st and 2^nd applicants were each sentenced to 3 years’ imprisonment.  Having on 25 June 2021 filed applications for leave to abandon their appeal against sentence, they now seek leave to appeal against conviction only.

Prosecution case

3.  On 26 October 2018, the police responded to a 999 from PW1 reporting suspicious persons in a private car (license number MG 451) and followed MG 451 to Triangle Motors Limited on Tun Tu Road in Lok Ma Cha.  D1 and D2 were sitting in the front seat of the car, whereas D3 and D4 were sat in the back.  All four were intercepted when they alighted from the car.[1]

4.  It was an admitted fact that the number plate MG 451 was false and the real registration mark pertaining to the car was “UM 2100”.[2] The judge, after having considered the evidence of the owner of the car (PW2) concluded that the car was stolen.[3]

5.  The police found inside the car a number of items including two knives, three hammers, a can containing suspected petrol, a walkie-talkie, two pairs of gloves, caps, three balaclavas and a face mask.  A third knife was found outside the car near to the rear passenger door behind the driver’s door.  Produced by way of admitted facts was that DNA evidence was also found on facemasks and a cap inside the car;[4] the DNA found on the surface of a facemask could have originated from D3[5] while the DNA on another face mask could have originated from D4.[6] Furthermore, DNA found on the inside of a cap was linked to D2 and D3.[7]

6.  In the seized mobile telephone of D2 was a photograph of a location bearing the word “target” in Chinese. There were also two photographs of a male referred to as “X” whom the prosecution alleged was the target.  X was not called as a witness.

7.  The prosecution case was that D1-4 had conspired to wound X.  The prosecution relied on circumstantial evidence, namely that the defendants were on board a stolen car, the items found in the car and the messages on D2’s mobile telephone as well as messages between D’s 1-4 and other persons unknown between 24 October 2018 and 26 October 2018.

D2’s mobile telephone

8.  D2’s mobile telephone contained WeChat messages between him and someone called “AKS” between 4:51 pm on 10 October 2018 and 7:38 am on 26 October 2018.  Two photographs were the subject matter of ruling by the judge and this leave application.  The messages were sent on 10 October 2018 and two were photographs of a male and one (photograph 73) was of a residence with the words hand written in Chinese: “Target ground …Black Grey Volks(wagen) JEEF 3382”[8] .

9.  The prosecution sought to admit this on the basis of the co-conspirators rule as proof that X was the target.

10.  The judge heard full argument on 15 May 2020 from counsel for D3 and D4.  It was submitted on behalf of D3 that this would be hearsay evidence as D2 (the statement maker) was not being called to give evidence.  D4 further contended that before the co-conspirators rule could be engaged “the evidence itself relied upon must in itself be admissible”.  Failing to establish that D2’s mobile telephone was accessed with his consent, the basis for admissibility was thus lacking.  The judge gave an oral ruling admitting the evidence in.

WDPC 4171’s Evidence

11.  WDPC 4171 examined the mobile telephone and the photographs sent to D2 by AKS.  She testified that through contacting WeChat, she had established the identity of AKS, who confirmed that the telephone number 64887398 belonged to him. It was explained by the judge that:

“This evidence was hearsay to prove the truth that ‘AKS’ was linked to the phone number 64887378 (§7(b) of the opening). Ms Ma explained that WeChat refused to give evidence and that the evidence was adduced only to show why the police carried out investigation of the telephone number 64887378.”[9]

12.  WDPC 4171 then made use of information obtained from the police system linked to the Transport Department.  She contacted and interviewed the male who was purportedly seen in the photographs on D2’s mobile telephone.  She said that the pictures of the male on the mobile telephone were fresh in her memory when she conducted the interview[10] and confirmed the male she interviewed was the same male in the photographs.[11]

13.  Section 74 of the Road Traffic Ordinance permits a certificate issued by or on behalf of the Commissioner of Police as proof as to the registered owner of the vehicle.  No such certificate was produced in this case.

14.  This aspect of WDPC 4171’s evidence identifying the male was objected to by D3 and D4, though on different basis: D3 argued that the link between the male and the jeep and record of identification were lacking and there was no record in the witness statement of WDPC 4171.  Counsel for D4 similarly submitted that, as the evidence was not in WPC 4171’s statement, D4 was unfairly ambushed and in any event, this being opinion evidence of WDPC 4171, it was not relevant.

15.  The judge rejected these submissions and permitted the identification.  He noted the close proximity between the time that AKS sent the photograph to D2 (at 4:51 p.m. on 10 October 2018) and D2 sending photographs of the residence and the reference to “Target and the Jeep JJ 3382” which was 21 minutes later[12]. The judge further remarked that whilst D3 and D4 were given time at the end of WPC 4171’s evidence to consider this ruling permitting identification, neither counsel had availed themselves of the opportunity.[13]

Defence case

16.  D3 did not give evidence.  D4 gave evidence that he and D3 stayed the night in a massage parlour in Yuen Long on 26 October.  They were on their way home to D3’s house in Tung Chung when they ran into D1 and D2 and were invited to have breakfast in Sheung Shui.  On their way to Sheung Shui, D3 told him that D2 had to meet someone in a village, so they all went to the village, waited for two to three minutes and left the village in the car.  D2 said there was something wrong with the alignment and the tyres needed to be changed at the Triangle Motors.  There they were intercepted.[14] D3 and D4 had no knowledge of any intended wounding.

Reasons for verdict

17.  The judge first considered the prosecution case as against D1 and D2.  He noted that the paraphernalia in the car, the false number plates, evidence pertaining to the fact the car was stolen; the messages on D2’s telephone relating to “target person”[15] were all probative of guilt.

18.  The judge relied on the consent form P52 signed by D2 as authorizing examination by the police of his telephone’s contents, and the results of the examination by WDPC 4171 (PW9).  Three pictures of relevance to the present case were extracted.  From the contents therein, PW9 traced the identity of the male to be X.  She then conducted an interview with X and she made a comparison between X and the person in the photographs. She was satisfied X was the person so depicted.  The judge was satisfied that he could safely rely on the identification made by PW9[16].  The judge was satisfied that the male in the photographs on D2’s telephone was the targeted person.

19.  The judge rejected the evidence of D4.  He found it inherently improbable that “D1 and D2 would by chance pick up D3 and D4 and invite them for breakfast when they were on the way to commit a serious crime unless D3 and D4 were party to the conspiracy”.[17] The judge relied on the telephone records from D4’s mobile telephone from 24 October 2018 to 26 October 2018 that contradicted D4’s evidence that his mobile telephone was placed inside a locker while he was in the sauna.[18] The judge also rejected D4’s evidence that he did not know who the caller of 56809314 was.

20.  There was also evidence that D4 had called “64887378” five times on the evening / night of 24 October 2018, and that “64887378” was calling D1 and D2 throughout the period immediately prior to the offence.[19] The three photographs were sent by D2 to “64887378” on 10 October 2018.

21.  Furthermore, there was DNA evidence originating from D3 and D4 on the inside surface of a cap found on the passenger seat.  There was DNA evidence, which could have originated from D4, found on the surface of a face mask which was found in a compartment between the driver’s seat and the front passenger seat.[20] D3 and D4 were sitting on the back seat where there were two hammers, one inside a bag (the zip of which was open) and a can of suspected petrol.[21]

22.  The judge found that a conspiracy could be inferred from all these circumstantial evidence.

Grounds of Appeal

23.  D3 and D4, both of whom are represented by Mr Young, advance two grounds of appeal.

Ground 1

24.  Mr Young argues the photographs in WeChat messages found in D2’s mobile telephone containing use of the word “target” on the photograph of the location and the photographs of a male were hearsay and inadmissible.  Without these messages, which were the only evidence of the conspiracy, there was simply “no other evidence of a common purpose to wound X with intent to do him grievous bodily harm”.[22]

25.  Mr Young’s argument is that the three WeChat photographs sent by D2 to AKS were out-of-court statements admitted for the truth of their contents, i.e. that the person in photos 67, 71-73 was the intended target of an attack.  He argues that this was hearsay evidence and the judge erred in admitting such evidence.

26.  Mr Young further argues that there is a lack of a foundation of independent and reasonable evidence linking the applicant to the conspiracy for the judge to rely on the co-conspirators rule to admit the evidence.  He contends that the circumstantial evidence did not entitle the court to draw the necessary inference.  There was no evidence showing where the applicants were heading or that they had knowledge of the items which were capable of being used as weapons or for concealment of one’s identity found in the car.  More importantly, Mr Young contends that the evidence identified by the respondent is not independent evidence showing the applicants were part of a conspiracy to wound X.  Therefore, the co-conspirators rule has no application in this case.

Ground 2

27.  Mr Young submits that as Mr X did not testify to confirm he was the registered owner of JJ 3382 and with no certificate of the Transport Department produced, the information that Mr X was the registered owner of JJ 3382 came from information retrieved by WDPC 4171 from the police system linked to the Transport Department.  As this information was entered into the system by another person who did not testify at trial, this information was relied on as the truth of its content and so is inadmissible hearsay.  Mr Young submits that the judge erred in accepting this piece of hearsay evidence and had such been ruled inadmissible, there was simply no admissible evidence as to the identity of the owner of JJ 3382, and the nexus connecting the man in the photos to JJ 3382 would be lacking.

28.  Thus, it is submitted that, the convictions are unsafe and unsatisfactory.

The Respondent’s submissions

29.  The respondent, represented by Ms Fok, submits that the photographs found on D2’s mobile telephone were acts and declarations made by D2 as one conspirator outside the presence of others in the furtherance of a conspiracy.

30.  Ms Fok’s primary submission is that the judge was not relying on the truth of the assertion “Target ground Black Grey Volks(wagen) JEEP JJ 3382” but rather, was drawing inferences from the circumstantial evidence, that the man in the first two photographs was the target.  To this extent, Ms Fok submits that there was no need to rely on the co-conspirators rule in finding that X was the target of the conspiracy.

31.  Ms Fok also argues that the co-conspirators rule can nonetheless apply as there was ample independent evidence to link the applicants to the conspiracy, in particular:

(i)  The applicants being onboard a stolen vehicle;

(ii)  The knives and hammers found in the car (one of which had a bandage round its handle indicating this was to conceal fingerprints);

(iii)  The balaclavas and the gloves found in the boot, together with DNA evidence which could have come from D3 being found on the surface of a facemask and a cap, while DNA evidence which could have originated from D4 was found on another facemask;

(iv)  Telephone records suggesting that D4 had a close connection with D1 and D2 as well as the mobile telephone numbers 64887378 and 56809314 at the material times.

32.  Ms Fok relies on the case of R v Smart [23] in support of her contention that in this case only a foundation of independent evidence of a conspiracy to wound somebody is sufficient.

33.  On ground 2, Ms Fok argues that the judge never made a finding that X was the registered owner of JJ 3382.  He only found that X was the target of the conspiracy on the basis of the identification of X by WDPC 4171 and the circumstantial evidence of the close connection between the three photographs and the close proximity between the time at which the photographs were sent and when the offence occurred.

Discussion

34.  The Prosecution expressly told the judge that they were relying on the co-conspirator’s rule to admit photograph 73[24].  This issue was canvassed at length between counsel and the judge.  Whilst it was mentioned by D3’s counsel that independent evidence had to be established first[25], the focus later turned on the admissibility of the evidence and whether the consent form, purportedly signed by D2 (P52), was validly obtained[26]. The judge ruled P52 admissible and the photographs retrieved from D2’s mobile telephone were relevant and admissible and there were no grounds to exercise his discretion to exclude them.[27]

35.  One must first determine the purpose for which evidence of an out-of-court statement is tendered in order to determine whether the hearsay rule has been breached: Oei Hengky Wiryo v HKSAR (No.2), per McHugh NPJ:

“41.  …Often the fact inferred from the statement is used to infer another fact in issue or relevant to a fact in issue.  In all these cases, the words, figures or utterances in the out-of-court statement may be used as evidence, alone or in conjunction with other evidence, to prove another fact or facts as long as the contents of the statement are not assumed to be true in proving the fact or facts to be proved. In some case, however, the coincidence between “other evidence” and the words, figures or utterances may be so exact that an inference can reasonably be drawn that the words, figures or utterances are true. In this latter class of case, the contents of the statement, but not its truth, are compared and combined with the facts established by other evidence to reach the conclusion that the only reasonable explanation of the statement and the other facts is that the contents of the statement are indeed true…”

36.  In the present case, the purpose of  tendering those pictures was relevant to prove, in conjunction with other evidence, the existence and nature of the conspiracy.  The judge never assumed the truth of the contents of the photograph.  The other evidence included the telephone records which were admitted into evidence, and the judge was satisfied that there was no coincidence that 56809314 (a pre-paid sim) was telephoning D4 at the same time as telephoning 64887378 (the recipient of those photographs sent by D2) who was throughout the period telephoning D1 and D2.  There was also evidence that D3 and D4 were occupants of a car with a false licensed plate and in close proximity to the weapons, one of which was bandaged at its handle, which militated against the possibility of fingerprints being left there, and other equipment suitable for concealing the identities of attackers.  There was evidence of DNA of both D3 and D4.  Hence, the co-conspirators rule does not have to be invoked to admit this evidence.

37.  That said, even relying on the co-conspirators rule, the above “other evidence” were independent and reasonable evidence which laid the foundation for invoking the co-conspirators rule whereby evidence of the acts and declarations of one or more conspirators in furtherance of a conspiracy may be adduced to prove the extent and degree of participation of another or others in the conspiracy and the nature and extent of the conspiracy: Vivien Fan v HKSAR[28].

38.  Mr Young’s argument that the independent evidence must show the two applicants were part of a conspiracy to wound, specifically, X, overlooks the principle as stated in the case of Ahern v The Queen[29]. Mason CJ, delivering the judgment of the High Court of Australia, concluded that:

“…In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.”

To construe whether there is some further evidence, beyond the document or utterance itself, to prove that the other was a party to the agreement, in the case of R v Smart, supra, the court did not accept too narrow a construction to the expression of “agreement”.  Lord Justice Clarke held:

“36. It seems to us that that approach requires merely that there be some other evidence of common purpose. We can see no reason in principle why it should not be sufficient for the evidence to be admissible evidence that the common purpose was the supply of illegal drugs…Here there was some further evidence going so far as to establish an unlawful agreement, even though it did not establish that the agreement related specifically to cocaine.”

39.  Ground 1 is not reasonably arguable.

40.  Ground 2 complains of the judge relying on inadmissible hearsay evidence of what was contained in the Transport Department record accessed by WDPC 4171, namely, that X was the owner of JJ 3382, to conclude that X was the intended victim.

41.  McHugh NPJ, in Oei Hengky Wiryo(No.2), supra, said:

“76. …What Secretary for Justice v Lui Kin Hong permits is the drawing of inferences from the document concerning the nature of the document and its contents, not inferences from or concerning the truth of the contents. The distinction between an inference drawn from the nature and contents of a document and an inference drawn from or concerning the truth of those contents is subtle but the distinction is fundamental and an inevitable consequence of the admission of an out-of-court statement for a non-hearsay purpose. …”

42.  The argument that the judge relied on the registered owner evidence from the police system is fallacious.  At no time did the judge make any findings that X was the registered owner of JJ 3382.  The passages in the transcript and the Reasons for Verdict was all in the context of repeating or relating the evidence of WDPC 4171.  It was clear that the nature of the information and the contents of the registered owner information enabled WDPC 4171 to trace X, and when interviewing X she made a visual comparison.  At no time did the judge rely on the truth of the content of that record, but rather relied on the identification evidence of WDPC 4171 after she had accessed the contents of those records and contacted X and made a comparison, satisfying herself that X was the person seen in the photographs, and further came to the conclusion that X was the targeted person by virtue of the circumstantial evidence of the close connection in time between the three photographs and the time when the photographs were sent and the time of the offence.

43.  Grounds 2 is not reasonably arguable.

44.  I refused leave and reminded the applicants of their right to renew their application for leave to the Court of Appeal and that may attract a consequence of a direction for loss of time spent in custody pending their appeal, should the court come to the view that there is no justification for the renewal of their application.

[1] Reasons for Verdict, Appeal Bundle pg 19K-Q.

[2] See admitted facts para.1, Appeal Bundle pg 14.

[3] Appeal Bundle pg 46Q-S.

[4] Reasons for Verdict, Appeal Bundle pg 20A-E and pg 43G-K.

[5] See admitted facts para 10(a), Appeal Bundle pg 16.

[6] See admitted facts para 10(b), Appeal Bundle pg 16.

[7] See admitted facts para 10(c), Appeal Bundle pg 16.

[8] Appeal Bundle pg 36A-N

[9] Appeal Bundle pg 37Q-S.

[10] Appeal Bundle pg 37J-N; pg 234A-E & pg 236N-P.

[11] Appeal Bundle pg 37O-Q.

[12] Appeal Bundle pg 51M-Q.

[13] Appeal Bundle pg 51R-52D.

[14] Appeal Bundle pg 40S-41C.

[15] Appeal Bundle pg 50A-K.

[16] Appeal Bundle pg 53I-L

[17] Appeal Bundle pg 55L-N

[18] Appeal Bundle pg 57J-N

[19] Appeal Bundle pg 64L-N

[20] Appeal Bundle pg 66J-L

[21] Appeal Bundle pg 65 H-J and pg 66G-I

[22] Applicant’s submissions page 3 para 5.

[23] [2002] EWCA Crim 772

[24] Appeal Bundle pg 281Q-S

[25] Appeal Bundle pg 278G

[26] Appeal Bundle pgs 302T-307L

[27] Appeal Bundle pg 50H-O

[28] (2011) 14 HKCFAR 641, paragraph 81

[29] (1988) 165 CLR 87 at 100