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Hksar v Eruvattam Kundil Anil

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date10 June 2015
Year2015
Citation[2015] 3 HKLRD 456
Judgement NumberHCMA704/2014
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA704/2014 HKSAR v. ERUVATTAM KUNDIL ANIL

HCMA 704/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 704 OF 2014

(ON APPEAL FROM TWCC NO 1346 OF 2014)

________________________

BETWEEN
HKSAR Respondent
and
ERUVATTAM Kundil Anil Appellant

________________________

Before: Hon Zervos J in Court
Dates of Hearing and Judgment: 3 and 9 June 2015
Date of Reasons for Judgment: 10 June 2015

________________________

REASONS FOR JUDGMENT

________________________

Introduction

1. On 7 October 2014, the appellant was convicted after trial by Mr Peter Hui Shiu Keung, Deputy Magistrate (the Magistrate), of two offences of dealing with goods to which the Dutiable Commodities Ordinance, Cap 109, applied, contrary to section 17(1) as read with section 46(3) of the Dutiable Commodity Ordinance, (Charges 1 and 2) and one offence of taking employment while being a person in respect of whom a removal order is in force, contrary to section 38AA(1)(b) and (2) of the Immigration Ordinance, Cap 115 (Charge 3). The Magistrate sentenced him to concurrent terms of imprisonment of 3 months on Charge 1, 14 days on Charge 2 and 21 months on Charge 3.

2. On 14 October 2014, the appellant applied to the Magistrate for a review of the sentence on Charge 3 which was refused.

3. The appellant appeals the conviction of the three offences and appeals out of time the sentence of 21 months’ imprisonment imposed on Charge 3.

4. This appeal was previously fixed for hearing on 14 January 2015 and 8 May 2015 but on each occasion it was adjourned because the appellant requested a Malayalam interpreter. He had previously been provided with the services of a Tamil interpreter in his dealings with the police and at his trial in the Magistrate’s Court. He acknowledged that he spoke a little Tamil and English.

5. At the appeal hearing the services of a Malayalam interpreter were provided to him. The appellant complained that at his trial he did not have the services of a Malayalam interpreter and as a consequence his evidence had been misinterpreted. A further hearing was held to listen to the audio recording of his evidence at trial to deal with his complaint.

6. At the conclusion of the hearing I dismissed the appeals against conviction and sentence and said I would hand down my reasons which I now do.

Prosecution case

7. The prosecution case mainly consisted of the evidence of the police officer who on 23 April 2014 intercepted the appellant who was behaving suspiciously. The appellant was in the company of his girlfriend and carrying a red nylon bag. The police officer asked him in English what was inside the bag and he replied that he was moving goods. He asked him again and he said “cigarettes”. Another police officer searched the bag and found 5,600 sticks (28 cartons) of dutiable cigarettes. He asked him if the cigarettes belonged to him and he said yes. He inspected the cigarettes and found that they were all duty not paid. He then arrested the appellant. The appellant indicated that he had more cigarettes at home and was willing to take the police officer there to have a look. He then went with the appellant to his room where he found a further 660 sticks (3 cartons and 3 packets) of dutiable cigarettes inside a plastic bag. Upon inquiry he acknowledged that the cigarettes belonged to him. The police officer arrested the appellant for the second lot of cigarettes.

8. It was an admitted fact at trial that on 23 April 2014 the police officer found 5,600 sticks of different brands of cigarettes inside a nylon bag the appellant was carrying and that upon a search of his home 660 sticks of cigarettes were found inside a plastic bag. It was also an admitted fact that all the cigarettes were duty not paid cigarettes and were dutiable and that the cigarettes belonged to him.

9. The appellant made three written caution statements with the assistance of a Tamil interpreter. The first was made between 8:25 and 9:50 pm on 23 April 2014. The second was made between 9:52 and 11:07 pm on 23 April 2014. The third was made between 10:34 am and 2:29 pm on 8 May 2014. It was an admitted fact at trial that voluntariness was not in dispute in relation to the three cautioned statements and that each statement accurately recorded what the appellant said and answered during the interview. The first two cautioned statements were taken from the appellant by the police officer at Yuen Long Police Station with the assistance of an English interpreter and a Tamil interpreter. The third caution statement was taken from the appellant by an immigration officer with the assistance of an English/Tamil interpreter. In each statement the questions and answers were written in English and Tamil and it was confirmed at the outset that the appellant understood Tamil and agreed to conduct the interview through a Tamil interpreter. He signed each statement which he acknowledged that he had read and understood. In the third statement he said that he understood spoken Tamil but could not read or write it. He agreed to have the statement taken through a Tamil interpreter and acknowledged that what had been recorded had been read out to him which was an accurate record of questions asked and answers provided by him.

10. In the first cautioned statement he said:

“When I was sitting on a seat in front of a Nepalese Shop yesterday evening I met a Chinese man named Etrong. I don’t know his full name. I have seen him two or three times before this meeting. He asked me what is my job and I replied I am not doing any job. Then he gave me 3 packages of cigarettes and asked me to keep it in my house. He also said that he will give me more packets and asked me to come to the same place today. When I went there today between 9.30 to 10 o’clock as suggested by him he handed over to me 30 packages of cigarettes and told me that someone else will come and collect it from me. He gave me 200 dollars. He noted down my phone number but did not give his. When I got down from the taxi near my house and trying to go inside the police arrested me.”

11. In the second caution statement he admitted that the cigarettes found at his home had been given to him by the Chinese male the night before.

12. In the third cautioned statement he said that in relation to the cigarettes:

“I was carrying the cigarettes to my flats. A Chinese male call Etrong gave me the cigarettes in a Nepalese Shop, he told me to carry all the cigarettes back to my flats and somebody will take the cigarettes soon. He gave me HK$200 cash as a reward immediately.”

13. When he was asked why he was helping Etrong to deliver the cigarettes he said:

“This is my first time I worked for Etrong. I worked for him the reason because I needed some money for my livelihood. After police arrested me he did not contact me, I didn’t have his contact no or I do not know his address.”

Defence case

14. The appellant gave evidence at trial but gave a different account as to how he came to be in possession of the cigarettes. He said that on the day of his arrest he met by chance a Chinese male who he knew and had seen two or three times before. He did not know his name. The Chinese male had a bag in his possession and was waiting for a friend. They sat and talked with each other in English during the course of which he received a telephone call from his girlfriend asking him to go to his flat. The Chinese male then asked him to keep the bag for him and that he would collect it later in the evening from his flat. The Chinese male knew where he lived. He said he just took the bag without giving the matter any thought. He said that when the bag was handed to him it was closed and he could not see what was inside it. He said he did not ask the Chinese male what was inside it, nor did he check to see what it contained. He went home and met his girlfriend. He handed the bag to his girlfriend while getting the keys to open the gate of the building where he lived. As he was opening the gate he was intercepted by the police officer. He asked him what was inside the bag and he said he did not know. He said that he and the police officer spoke together in English. He said he told the police officer that a Chinese male had given him the bag to keep it at his home and that he would come in the evening to pick it up. He said he told the police officer that he would point out the person to him but he was handcuffed and taken upstairs to his flat. He said his flat was provided as part of the welfare assistance he received as a torture claimant and that there were four other people living there. He said he did not know where inside the flat the other cigarettes were found. He said that he and the other four household members were heavy smokers and that he would smoke a packet of cigarettes a day. He said he would buy cigarettes from a shop.

15. The appellant disputed the admissions contained in the first two cautioned statements, and he said that although what was said were in his own words, it was not...

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