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Hksar v Khalid Mansoor And Others

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date16 October 2018
Neutral Citation[2018] HKCA 517
Year2018
Judgement NumberCACC381/2017
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC381/2017 HKSAR v. KHALID MANSOOR AND OTHERS

CACC 381/2017

[2018] HKCA 517

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)

___________________

BETWEEN
HKSAR Respondent
and
KHALID MANSOOR 1st Applicant
SARFRAZ 2nd Applicant
JAWAD HUSSAIN 3rd Applicant

___________________

Before: Hon Zervos JA in Court

Dates of Hearing: 15 August and 11 October 2018

Date of Judgment: 11 October 2018

Date of Reasons for Judgment: 16 October 2018

__________________________

REASONS FOR JUDGMENT

__________________________


1. The applicants stood trial before Deputy District Judge A Yim (the judge) jointly charged with a single offence of assisting the passage within Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115.

2. On 10 August 2017, the 2nd applicant pleaded guilty to the offence, but disputed certain facts, 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. The 1st and 3rd applicants pleaded not guilty to the offence and proceeded to trial. The Newton hearing was heard together with the trial of the 1st and 3rd applicants without objection from the applicants.

3. On 30 October 2017, the judge found the 1st and 3rd applicants guilty of the offence, and the 2nd applicant was the central organiser in receiving the unauthorised entrants in Hong Kong.

4. On 15 November 2017, the judge sentenced the 1st, 2nd and 3rd applicants to terms of imprisonment of 32 months, 43 months and 32 months respectively.

The applications for leave to appeal

5. The 1st applicant in his Form XI applies for leave to appeal against conviction and sentence, but does not specify any grounds of appeal.

6. The 2nd applicant in his Form XI applies for leave to appeal against sentence. In his appeal papers, he complained that his sentence was too high. He emphasised that he has been in Hong Kong for 5 years without a criminal record. He said that his only mistake was that he arranged the passage of his brother to Hong Kong to help him and that he had no intention of deriving any financial benefit from the arrangement. He said that he was merely the organiser in order to assist his brother to come to Hong Kong for a better life. He pointed out that he admitted his guilt and pleaded guilty. He complained that he was given a greater sentence than the other two applicants and that he only received a discount of 20% for his plea of guilty.

7. The 3rd applicant in his Form XI applies for leave to appeal against conviction only. In his appeal papers, he complained that he did not commit the offence and the case was not proven against him. He emphasised that he has been residing in Hong Kong for 4 years and has not been in trouble with the law. He claimed that the three of them are innocent of the crime. He said that he and the 1st applicant had no connection with the three unauthorised entrants and did not know them. He said that this was confirmed by 2nd applicant in evidence at trial. He said that the three of them are friends who met on 14 August 2016. On that day, the 2nd applicant told him and the 1st applicant to go to Tuen Mun to meet a friend but only later did he and the 1st applicant realised that it was to pick up the 2nd applicant’s brother.

8. At the hearing of the applications, the three applicants appeared in person having had legal aid refused. After reserving judgment, I directed the parties to address me on an issue that had not been previously raised, namely the fact that the trial of the 1st and 3rd applicants was heard together with the Newton hearing of the 2nd applicant.

9. Ms Laura Liu, for the respondent, brought to my attention the case of KK v Director of Public Prosecutions [2016] 4 WLR 162 where a trial court heard the trial of a defendant together with the Newton hearing of a co-defendant. It was conceded that the evidence of a co-defendant in the Newton hearing was not admissible in the trial of the other defendant. She also referred to other cases where it was held that the usual practice is for a Newton hearing in respect of a co-defendant who has pleaded guilty to follow after the conclusion of the trial of the defendant who has pleaded not guilty, although there may be circumstances where this might not be appropriate. See R v Smith (Patrick) (1988) 87 Cr App R 393; R v Stephen Dudley [2012] 2 Cr App R (S) 15; and R v Marsh [2018] 2 Cr App R (S) 28.

10. At the conclusion of the further hearing, I granted the 1st and 3rd applicants leave to appeal against conviction on the sole ground as to whether it was permissible for the judge to conduct the trial of the 1st and 3rd applicants together with the Newton hearing of the 2nd applicant, and whether the judge used, or could use, the evidence of the Newton hearing in relation to the trial of the 1st and 3rd applicants. Otherwise, I refused the 1st and 3rd applicants leave to appeal against conviction on the grounds that they had advanced and the 1st applicant leave to appeal against sentence. I also refused the 2nd applicant leave to appeal against sentence on the grounds that he had advanced. I indicated that I would hand down my reasons for my judgment in due course which I now do.

The proceedings before the judge

11. The circumstances in which the judge found herself were unusual. The prosecution and the three applicants were represented by experienced trial counsel who did not object to combining the proceedings.

12. The prosecution presented its case against the applicants, addressing the guilt of the 1st and 3rd applicants and the role of the 2nd applicant in relation to the offence it was alleged that they had jointly committed. However, the case proceeded as if the three applicants stood as three defendants at trial with each being separately represented by counsel throughout the proceedings.

13. The prosecution presented the evidence of its witnesses who in turn were available for cross-examination by counsel for each of the three applicants. After the prosecution case had been presented, the three applicants presented their respective cases with each of them giving evidence. The 1st applicant also called a witness as part of his defence. It would appear that the 2nd applicant was not formally called as a witness as part of the case of either the 1st applicant or the 3rd applicant, although, it may be viewed that by the conduct of the defence cases of the 1st and 3rd applicants that the evidence of the 2nd applicant was being relied upon by them. When each of the three applicants presented their respective cases they were subject to cross-examination by prosecution counsel and counsel for the other two applicants.

14. The extent to which there was any demarcation between the two sets of proceedings is unclear but the judge did remind herself that she had to consider the case against each of the applicants separately. But the critical question is whether she took into account evidence that was not part of the trial of the 1st and 3rd applicants.

The cases at trial

15. The prosecution case was that the three applicants 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 the 2nd applicant 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 were Pakistanis.

16. The defence case was that the three applicants were friends who were to celebrate, together with others, Pakistan National Day on 14 August 2016. The 2nd applicant 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 the 1st and 3rd applicants to accompany him. They took a taxi to the Landfill where the 2nd applicant alighted from the taxi with the 1st applicant following him. The 2nd applicant 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. He only helped the other two at the request of his brother after they had landed. As the taxi could only take four passengers, the 2nd applicant asked the 1st applicant to convey the three unauthorised entrants to his home and he would arrange a separate taxi for himself and the 3rd applicant. The 1st and 3rd applicants had no knowledge of the status of the three unauthorised entrants.

The judge’s reasons for verdict

17. The judge in her reasons for verdict noted that the applicants had been jointly charged with the offence of assisting the passage within Hong Kong of unauthorised entrants. She referred to the 1st , 2nd and 3rd applicants as D1, D2 and D3 respectively. 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,...

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