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Hksar v Khalid Mansoor And Another

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date25 March 2020
Neutral Citation[2020] HKCA 92
Citation[2020] 2 HKLRD 374
Judgement NumberCACC381/2017
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC381A/2017 HKSAR v. KHALID MANSOOR AND ANOTHER

CACC 381/2017

[2020] HKCA 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 381 OF 2017

(ON APPEAL FROM DCCC NO 1084 OF 2016)

_______________

HKSAR Respondent
v
KHALID MANSOOR 1st Appellant
JAWAD HUSSAIN 2nd Appellant

_______________

Before: Hon Yuen, McWalters and Zervos JJA in Court

Date of Hearing: 12 November 2019

Date of Judgment: 12 November 2019

Date of Reasons for Judgment: 25 March 2020

__________________________________

R E A S O N S F O R J U D G M E N T

__________________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1. With leave of this Court,[1] the appellants appealed against their convictions after trial before Deputy Judge A Yim for the offence of assisting the passage within Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115. They had been jointly charged with another defendant, D2 at trial, who pleaded guilty to the offence. The 1st appellant and 2nd appellant, D1 and D3 respectively at trial, pleaded not guilty to the offence. We will refer to them by their trial designations in this judgment.

2. In presiding over the proceedings, the judge combined the trial of D1 and D3 with the Newton hearing of D2, who had contested certain factual matters contained in the Summary of Facts that were presented by the prosecution when D2 pleaded guilty. Leave was granted to D1 and D3 to appeal against their convictions on the sole ground as to whether it was permissible for the judge to conduct the trial of D1 and D3 together with the Newton hearing of D2, and whether the evidence of the Newton hearing was admissible in the trial of D1 and D3.

3. At the conclusion of the hearing, we allowed the appeal of D1 and D3, quashed their convictions and made no order for a retrial. We said we would hand down our reasons in due course, which we now do.

The proceedings at trial

4. On 10 August 2017, D2 pleaded guilty to the offence, but disputed certain factual matters alleged against him, particularly the allegation that he was “the central organiser” of the offence. In order to resolve the issue, the judge directed that a Newton hearing be held. D1 and D3 pleaded not guilty to the offence and proceeded to trial. The Newton hearing was heard together with the trial of D1 and D3 without objection from the parties.

5. On 30 October 2017, the judge found that D1 and D3 were guilty of the offence, and that D2 was the central organiser in receiving the unauthorised entrants in Hong Kong.

6. On 15 November 2017, the judge sentenced D1, D2 and D3 to terms of imprisonment of 32 months, 43 months and 32 months respectively.

The application for leave to appeal

7. In accordance with the leave judgment of this Court, the two appellants filed essentially the same ground of appeal against conviction in which they complained that the judge erred in law by conducting the Newton hearing of a co-defendant as part of and within the trial of the appellants, and then using the evidence and findings in the Newton hearing against the appellants. They submitted that this amounted to a material irregularity in the course of the trial which rendered their convictions unsafe and unsatisfactory.

The proceedings before the judge

8. The circumstances in which the judge found herself were unusual. The prosecution and the three defendants were represented by experienced trial counsel who did not object to combining the proceedings.[2]

9. The prosecution presented its case against the defendants, addressing the guilt of D1 and D3 and the role of D2 in relation to the offence it was alleged that they had jointly committed. However, the case proceeded as if the three defendants stood as three defendants at trial with each being separately represented by counsel throughout the proceedings.

10. The prosecution presented the evidence of its witnesses who in turn were available for cross-examination by counsel for each of the three defendants. After the prosecution case had been presented, the three defendants presented their respective cases with each of them giving evidence. D1 also called a witness in his defence. D2 was not formally called as a witness as part of the case of either D1 or D3, although they both seemed to rely on D2’s evidence. When each of the three defendants presented their respective cases, they were subject to cross-examination by prosecution counsel and counsel for the other two defendants.

11. It was an extraordinary turn of events that during the trial proceedings of D1 and D3, Mr McGowan, who was representing D2, was permitted to cross-examine the prosecution and defence witnesses, including D1 and D3. D1 and D3’s video-recorded interviews were in evidence, as was also D2’s video-recorded interview and the contested Summary of Facts.

12. Whilst the judge reminded herself that she had to consider the case against each defendant separately, there was no acknowledgement by her that she was dealing with two separate proceedings, nor was there a clear demarcation in her consideration of the evidence between the two proceedings. A critical issue in this appeal therefore was whether the judge improperly combined the two proceedings and impermissibly took into account evidence that was not part of the trial of D1 and D3.

The cases at trial

13. The prosecution case was that on 14 August 2016 the three defendants travelled by taxi from Nai Wai, Tuen Mun to Nim Wan Landfill (the Landfill) to pick up three unauthorised entrants and then convey them back to Nai Wai. As the taxi was about to leave, police officers arrested the group of men. The call and text message records of the mobile telephones seized from the men revealed that D2 was the principal organiser of a syndicate to receive the unauthorised entrants upon their arrival in Hong Kong by boat. A subsequent sweep of the area by the police located six other men, four of whom were Nepalese and the other two Pakistani.

14. The defence case was that the three defendants were friends who were to celebrate, together with others, Pakistan National Day on 14 August 2016. D2 was responsible to cook the food for the event. While he was preparing the food, he received a telephone call to meet up with friends and asked D1 and D3 to accompany him. They took a taxi to the Landfill where D2 alighted from the taxi with D1 following him. D2 intended to pick up his brother whom he had arranged to come into Hong Kong illegally. However, he did not expect the other two unauthorised entrants to be there. He only helped the other two at the request of his brother after they had landed. As the taxi could only take four passengers, D2 asked D1 to convey the three unauthorised entrants to his home and he would arrange a separate taxi for himself and D3. D1 and D3 had no knowledge of the status of the three unauthorised entrants.

The judge’s reasons for verdict

15. The judge in her reasons for verdict noted that the defendants had been jointly charged with the offence of assisting the passage within Hong Kong of unauthorised entrants. As part of her introduction, she noted:

“2. D1 and D3 pleaded not guilty while D2 pleaded guilty but disputed the facts that he was the central organizer of the offence. Conviction of D2 was entered upon his plea and admission of the facts that supported the charge. As the facts in dispute had a potentially significant effect on the level of sentence, a Newton hearing was directed. Further because the evidence concerned was inter-related to the case against the co-defendants, the Newton hearing was directed to be heard together with the trial of D1 and D3. Parties raised no objection that the Newton hearing be heard, together with the trial at the same time.” (Emphasis added)

16. It was argued by the appellants that from the judge’s italicised remarks, she considered that evidence presented in the Newton hearing was connected to the case against D1 and D3 and therefore formed part of their trial.

17. The judge gave a brief outline of the prosecution and defence cases. She then identified the matters in dispute and explained how she would approach making her findings, emphasising that the case of “each defendant should be considered separately.”

18. She summarised the evidence by first providing a background to the case and describing what had happened on the day in question. She stated that at around 3 am on 14 August 2016, the Hong Kong Marine Police picked up on its radar a suspicious object entering Hong Kong waters. This was later confirmed to be a vessel that had brought to Hong Kong three unauthorised entrants who landed at Nim Wan at 3:17 am. Shortly before 8 am, the three defendants boarded a taxi at Nai Wai bus stop.

19. An overview of the taxi driver’s evidence was set out by the judge. He said that during the journey, he was handed a mobile telephone and the caller instructed him to go to the Landfill. When they got to the destination, D1 and D2 alighted from the taxi and went to the guard post near the entrance of the Landfill. They appeared to be looking for something. D3, who remained in the taxi, gestured the taxi driver to go over to where the other two were located. The taxi driver did as instructed. The taxi driver saw D1 and D2 climbing up from a ditch with several people following them. The three unauthorised entrants got into the taxi with D1, whilst D2 and D3 remained behind.

20. As the taxi was about to leave, it was stopped by police and the defendants and the three unauthorised entrants were arrested. The police seized the mobile telephones of the defendants and the unauthorised entrants.

21. The judge accepted the evidence of the taxi driver...

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