區域法院（刑事）Her Honour Judge Wong Sze-lai, Lily20/4/2023[2023] HKDC 535
DCCC907/2021
A A
B B
DCCC 907/2021
[2023] HKDC 535
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 907 OF 2021 E
F F
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G G
HKSAR
H
v H
AHMED Gulzar
I I
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J J
Before: Her Honour Judge Wong Sze-lai, Lily
K K
Date: 21 April 2023
L Present: Mr. Maurice Peter Tracy, Counsel-on-fiat, for HKSAR. L
Mr. Andrew Bullett, instructed by Messrs. Lee Law Firm,
M M
assigned by the Director of Legal Aid for the Defendant.
N Offence: Possession of ammunition without a licence N
（無牌管有彈藥）
O O
P P
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Q Q
REASONS FOR VERDICT
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S S
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A A
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Charge
C 1. The defendant is charged with possession of ammunition C
without a licence, contrary to section 13(1) and (2) of the Firearms and
D D
Ammunition Ordinance, Cap. 238. The particulars of the offence allege
E that the defendant on or about 23rd day of February 2019, in Hong Kong E
had in his possession ammunition namely 3,600 of live blank ammunition,
F F
without a licence. The defendant pleaded not guilty to the offence.
G G
Outline of the case
H H
2. In gist, the prosecution case was that a parcel was sent from
I Germany to Hong Kong which contained 3,600 of live blank ammunition, I
subject matter of the charge. Affixed to the parcel was a customs
J J
declaration header “Deutsche Post” containing the name and address of the
K sender and that of the addressee which is a company called S2S Services K
(HK) Limited (hereinafter referred to as S2S).
L L
M 3. A controlled delivery was made to S2S. At last the defendant M
appeared and signed on the receipt. He was then arrested and he admitted
N N
under caution that his friend Manoj Kumar (hereinafter referred to as
O Kumar) asked him to receive the parcel but he did not know the content of O
the parcel.
P P
Q 4. What he said was recorded in the notebook of the arresting Q
officer who, at a later stage, conducted two Video Recorded Interviews
R R
(VRI) with the defendant. The prosecution, represented by Mr Maurice
S Tracy, sought to adduce the 2 VRIs as evidence against the defendant. S
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A A
B B
5. Mr Andrew Bullet, Counsel for the defendant, opposed the
C admission into evidence of the defendant’s 2 nd VRI. He submitted that the C
nd
defendant did voluntarily attend the 2 VRI but for reasons stated below,
D D
the court should exercise the residual discretion to exclude it. In light of
E the opposition, the trial was conducted by way of alternative procedure, E
and the prosecution called a total of 6 prosecution witnesses (PW).
F F
G Issue of the trial G
6. There is no dispute that the defendant did not hold a licence
H H
under section 13 of the Firearms and Ammunition Ordinance, Cap. 238
I (the Ordinance). I
J J
7. The prosecution submitted that the major issue in this trial is
K whether the prosecution can prove beyond reasonable doubt that the K
defendant knew that the parcel contained ammunition.
L L
M 8. Besides, in the course of the trial, the defence argued that M
whether or not the live blank rounds of ammunition fall within the
N N
definition of the Ordinance, and whether a certificate under section 22A of
O the Evidence Ordinance, Cap. 8 (hereinafter referred to as a 22A O
certificate) was required for the production of the defendant’s mobile
P P
phone records and his WhatsApp messages records (hereinafter
Q collectively referred to as Call Records). Q
R R
9. The prosecution said that PW5 had examined the defendant’s
S mobile phone and retrieved the Call Records. Such Call Records S
contradicted what the defendant said in the VRIs in relation to how long
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and how well he had known Kumar, and how many times he had received
C parcels for Kumar. The prosecution said the defendant had told lies. C
D D
Special issue
E 10. There was no half time submission for the special issue, and I E
ruled there was a case to answer. The defendant elected not to testify.
F F
Having heard submissions from both parties1, I did not consider that it was
G a case where I should exercise my discretion to exclude the 2 nd VRI on G
grounds of unfairness.
H H
I General issue I
11. In respect of the general issue, the defence made a no case
J J
submission2, and the prosecution made a reply3 to it. I ruled that there was
K a prima facie case. Following that, Mr Bullet informed the court that the K
defendant elected not to testify nor called any defence witnesses.
L L
M 12. Both parties then filed written closing submissions 4 and they M
orally addressed me some salient features of the issues involved.
N N
O
Prosecution Case O
13. As previously mentioned, the addressee of the parcel is S2S.
P P
It is agreed under s65B5 of Cap. 221 that S2S was incorporated in Hong
Q Kong under the Companies Ordinance. Cap. 622 on 9 January 2017 and Q
R R
1
MFI-D, Prosecutor’s Skeleton Argument
2
S MFI-F, No case submission - skeleton S
3
MFI-G, Prosecutor’s Note on Definition of Ammuinition
4
MFI-H, Fiat Counsel’s Closing Submissions;
MFI-I, Defence closing submissions; and
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MFI-J, Defence closing supplemental submissions
5
The witness statement of Ms Mabel So, Companies Registration Officer of the Companies Registry.
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dissolved on 27 November 2020. The director of S2S was Jain Shailender
C who lived in India. C
D D
14. In respect of how the subject parcel was discovered and
E delivered to S2S, it is admitted under section 65C of the Criminal E
Procedure Ordinance, Cap. 221 that:
F F
a) On 21 February 2019 at 1245 hours, Customs Officer
G Ng Chi Chuen (Ng) of Team 2, Parcel Clearance, Air G
Freight, Airport Section picked for examination an Air
H H
Parcel comprising a carton and contents sent from
I Germany to Hong Kong. It bore parcel number CY 51 I
25 44 44 5 DE. Affixed to the parcel was a Customs
J J
Declaration headed “Deutsche Post” containing the
K following information: K
Sender: Sven Seidler
L L
Mihlenweg 5, 91481 Altershausen,
M Germany M
Address: S2S Services (H.K.) Limited
N N
Room 7, 16F Star Mansion, 2-3 Minden
O Row, Kowloon, Hong Kong O
Telephone: 852-9282 0426
P P
Parcel Number: CY 51254445 DE
Q Date of Posting: 2019-02-06 Q
Total Gross Weight: 18 Kg
R R
Description: Blank Shells for sound light effects
S (Toys) S
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A A
B B
b) Around 1300 hours, Ng supervised another Customs
C Officer Yan Kin Man (Yan) who opened the parcel / C
carton box. It contained 6 large boxes marked “Titan”
D D
each of which contained 8 smaller boxes, each of which
E contained 75 rounds of suspected ammunition, totaling E
3,600 rounds.
F F
G c) Around 1745 hours, Yan handed over to DPC 58673 of G
Crime Intelligence and Support sub-unit, Airport
H H
District Hong Kong Police the following exhibits:
I (i) 3,600 suspected pyrotechnic ammunition; I
(ii) 48 smaller boxes (P8 to P55);
J J
(iii) 6 large boxes (P2 to P7);
K K
(iv) 1 carton box CY 512544445DE
L (P1, hereinafter referred to as the subject parcel); L
M (v) A post packet examination report. M
N N
d) In turn DPC 58673 took the above exhibits to Airport
O Police Station. At about 1805 hours on the same day, O
having again checked the numbers of the exhibits
P P
jointly with members of RCU NTS, he handed over to
Q DPC 3750 (PW1) of RCU NTS 1B. Q
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(PW 1 & PW 6)
S 15. PW1 (DPC 3750) and PW6 (DPC 8277) were respectively S
assigned to be the exhibit officer and arresting officer in this case. Their
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testimony corroborated with each other.
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A A
B B
C 16. On 21 February 2019, PW1 went to the Airport Police Station C
and met DPC 58673 who handed over to him the subject parcel.
D D
E 17. At 0635 hours on 23 February 2019, PW1 and PW6 received E
instructions to dress themselves as postal officers of Hong Kong Post and
F F
to conduct a controlled delivery of the subject parcel to the address
G provided in the Deutsche Post. In cross examination, PW1 agreed that he G
was instructed to arrest anyone who signed on the receipt of the parcel
H H
whereas PW6 said that the instruction was to arrest the person who
I received the parcel. I
J J
18. At 0930 hours, they brought along with them the parcel which
K was placed on a cart and arrived in front of Room 7 of 16/F Star Mansion, K
2-3 Minden Row, Tsim Sha Tsui, Kowloon (“the premises”) i.e. the
L L
address appeared on the subject parcel. PW6 knocked on the door of the
M premises and PW1 stood on his right. M
N N
19. It is not in dispute that there were two men inside the premises
O and they were later known to be Ahmed Abdullah (“Abdullah”) and Syed O
Muhammad Aslam (“Syed”). Abdullah opened the door and PW6 told him
P P
that he had a parcel with him. Abdullah then entered the first room of the
Q premises and talked to another person in a foreign language. Syed walked Q
out from the first room and opened the iron gate. PW6 explained to him in
R R
English that he was there to deliver the subject parcel. Syed looked at the
S address which appeared on the parcel. PW6 described that Syed seemed S
to be pressing his mobile phone to call someone. PW1 said he saw Syed
T T
using a mobile phone to call and to speak to someone in a foreign language.
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A A
B B
Afterwards, Syed instructed Abdullah to sign to acknowledge receipt of the
C subject parcel. C
D D
20. PW6 enquired whether Syed or Abudullah was the contact
E person of mobile number 92820426 (which appeared on the parcel). They E
denied being the contact person for that number. As a result, PW6 called
F F
that number and a man answered the call. At first PW1 spoke in Chinese
G but he then spoke in English: G
PW1: Are you have an air mail package.
H H
I am at Room 7, 16/F, Star Mansion, Minden Row
I Man: Yes I
PW1: how long you come back here take the parcel
J J
Man: 10 minutes
K PW1: See you later K
L L
21. While PW1 and PW6 were waiting outside the premises, they
M noticed that Abdullah was sitting on the sofa in the living room and Syed M
walking around. Later, Syed went into the toilet.
N N
O 22. At 0943 hours, the defendant wearing a pair of slippers came O
from the lift of 16/F and walked towards the premises. The defendant
P P
waved hands at PW1 and PW6 and said in Chinese “大佬，唔好意思” (Big
Q Q
brother, excuse me, transliteration). PW6 pointed at the subject parcel and
R
spoke to him in English “if the parcel was his”, to which the defendant said R
“yes”.
S S
T 23. PW6 handed over the receipt to the defendant who took it and T
walked into the premises. The defendant signed on the receipt. He also
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A A
B B
asked PW1 and PW6 to enter the premises and to place the parcel in front
C of the TV in the living room. PW6 asked the defendant for a company seal C
of S2S for verification. PW6 saw the defendant take out a company seal
D D
from the under shelf of the coffee table in the living room and stamped the
E receipt. After that, the defendant put the company seal into the right pocket E
of his jacket.
F F
G 24. PW6 noticed that the information of the company seal tallied G
with the information of the subject parcel. He immediately called for
H H
reinforcement. A minute later, i.e. 0946 hours, his colleagues arrived at
I the scene to render assistance. I
J J
25. In cross examination, PW1 agreed that Syed and Abdullah
K appeared to live in the premises and he recalled that one of them had taken K
a shower inside the premises. He saw some upper garments and pants
L L
inside the premises and learnt that both worked in a money changer shop.
M M
26. Inside the premises, there were 2 rooms and one of them was
N N
described by PW6 as a storeroom which was locked at that time. Enquiries
O were made to the defendant, Syed and Abdullah if they had the key to the O
storeroom but they said no. Therefore, PC 5589 broke into the storeroom.
P P
Q 27. At 1000 hours, PW6 arrested the defendant. Under caution the Q
defendant said “My friend Manoj Kumar told me to receive the air parcel,
R R
I don’t know what is inside”. PW6 then asked the defendant a number of
S questions which were, together with the verbal admission, subsequently S
post-recorded in his police notebook. The post record is as follows:
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PW6: Where is Manoj Kumar come from?
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A A
B B
Def: India.
C PW6: Where is Manoj Kumar now? C
Def: India.
D D
PW6: Do you have any contact of Manoj Kumar?
E Def: His phone number is 56317175 and he lives in here. E
PW6: Do you have any keys of here, Room 7, 16th Floor, Star
F F
Mansion, 2-3 Minden Row, Tsim Sha Tsui, Kowloon?
G Def: Yes, Manoj Kumar gave the keys to me yesterday G
afternoon.
H H
PW6: How many times you receive air parcel for Manoj
I Kumar? I
Def: Two times including this time.”
J J
K 28. It is an admitted fact that Kumar left Hong Kong through K
Hong Kong Airport after 1709 hours on 22 February 2019 (i.e. the day
L L
before the offence date).
M M
29. Syed and Abudllah were also arrested.
N N
O 30. Upon a body search of the defendant by PW6, the following O
items were found:
P P
(i) the company seal from the pocket of the defendant’s
Q blue jacket; Q
(ii) a bunch of 7 keys from the defendant;
R R
(iii) a pink Samsung mobile phone from the right pocket of
S the defendant’s trousers; S
(iv) a blue Nokia mobile phone from the left pocket of the
T T
defendant’s trousers;
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A A
B B
(v) a brown wallet from the right rear pocket of the
C defendant’s trousers, and the wallet contained a rent C
receipt in respect of the premises naming Manoj Kumar
D D
and dated 30 January 2019.
E E
31. At 1055 hours, the defendant signed on PW6’s police
F F
notebook that he consented to give the passwords of his two mobile phones
G to the police. G
H H
32. At 1205 hours, upon search of the premises, a DHL envelope
I containing a letter dated 8 January 2019 to S2S was found. The addressee I
was S2S for the attention of ‘Mr Manoj Kumar, Manager”.
J J
K 33. At 1310 hours, Mr Yakoob6 the Urdu interpreter, and Mr CY K
Pang7, the English interpreter, arrived at the scene to assist PW6.
L L
M 34. Around 1430 hours, PW6 took the defendant to his residence M
which was situate at Room 3, 3/F of Star Mansion for a house search.
N N
Nothing suspicious was found. At 1448 hours, the 3 arrestees were
O escorted to Tsim Sha Tsui Police Station. O
P P
35. With the assistance of the two aforementioned interpreters,
Q PW6 issued a total of 4 “Notice to Persons in Custody” to the defendant8. Q
At 1825 hours, PW6 read over the content of his notebook to the defendant
R R
who signed on it.
S S
6
His witness statement, P104, is admitted under s65B, Cap. 221
T 7 T
His witness statement, P102, is admitted under s65B, Cap. 221
8 st
1 Notice at 1537 hours [P71]; 2nd Notice at 1805 hours [P72]; 3rd Notice at 2115 hours [P73] and 4th
Notice at 16720 hours on 24 February 2019 [P74].
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C 36. At 2140 hours, PW6 conducted the 1st VRI with the defendant C
in the presence of Mr CY Pang and Mr Yakoob. On the following day i.e.
D D
24 February 2019 at 1649 hours, PW6 took the 2 nd VRI in the presence of
E Mr Ahmed9, an Urdu interpreter, and Mr Pang. The 2 VRIs were played in E
court.
F F
G The gist of the VRI G
37. In the 1st VRI, the defendant said:
H H
(i) he came to HK from Pakistan in 2013;
I (ii) he knew Kumar for 2 months; Kumar is an Indian male I
who used to live in India; he had no deep relationship
J J
with Kumar, just causal friend; he knew the WhatsApp
K number of Kumar 5631 7175; K
(iii) the Nokia phone belonged to him;
L L
(iv) the Samsung phone belonged to him; it was an internet
M phone and Kumar’s phone number was stored in it; M
(v) he had used the number 9282 0426 for a very long time
N N
and had never given this number to anyone for use;
O (vi) he used WhatsApp for contacts and the name Bhalla Jee O
stored in the phone referred to Kumar;
P P
(vii) Kumar had previously asked him once to receive the
Q parcel which was in late January 2019; Q
(viii) on 22 February 2019, he met Kumar in Chungking
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Mansion; Kumar said there was a carton to be arrived
S tomorrow or the day after tomorrow; Kumar gave him S
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9
His witness statement, P101, is admitted under s65B, Cap. 221
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A A
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the keys of the premises; Kumar asked him to receive
C the parcel and placed it in his flat; Kumar did not tell C
him what it was; Kumar told him if asked by the courier
D D
to stamp on the parcel, he could get the company seal
E from the coffee table in the living room; it was the first E
time he saw the company seal;
F F
(ix) he simply helped his friend to receive the parcel;
G (x) the receipt found in his wallet was given by Kumar on G
22 February;
H H
(xi) he had never heard of S2S; had no relationship with
I S2S; did not know the relationship between S2S and the I
address of the premises; did not know why his mobile
J J
phone number appeared on the Deutsche Post of the
K subject parcel. K
L L
38. In the 2nd VRI, the defendant was asked again about his
M knowledge of the parcel, the keys, the company seal and how long he had M
known Kumar. Regarding these matters, he maintained the version he gave
N N
in the 1st VRI. He also said he knew little English. He was asked if he had
O anything to say in respect of the following matters: O
(i) when he was shown two screen shots which captured
P P
from the WhatsApp communication he had with Kumar
Q on 29 June 2018, D had nothing to explain; Q
(ii) the defendant was shown a photo of a TV dated 12 July
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2018 which was sent to Kumar, the defendant offered
S no explanation; S
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A A
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(iii) on 3 November 2018 Kumar sent a picture to the
C defendant in relation to a shipment of DHL. D said he C
did not know about and did not remember;
D D
(iv) there were other messages including audio messages
E between them which took place in November and E
December 2018, the defendant said he did not
F F
remember.
G G
(PW 2)
H
39. Mr Benjamin Wong, forensic firearms examiner, was called H
to give expert evidence. Taking into account that Mr Wong had given
I I
expert evidence before, the qualifications he had attained, the training he
J had received and that there was no dispute as to his expertise, I ruled that J
he could give evidence as an expert in his field. Mr Wong’s 13 witness
K K
statements, almost identical in content, were produced.
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40. For reasons which would be apparent later, there is no need to
M M
rehearse the evidence of PW2.
N N
(PW 3)
O O
41. PW3 is Madam Hwan who is the landlady of the premises.
P She was tendered for cross examination. She agreed that in June 2018 she P
signed a tenancy agreement with the tenant Bhalla Sanjeev for the period
Q Q
from 1 July 2018 to 30 June 2020. The tenancy agreement was shown to
R her but she said she could not recall the name of the tenant nor read English. R
She remembered that the tenant told her two other persons would live in
S S
the premises.
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A A
B B
42. She also agreed that she entered a tenancy agreement with
C Kumar for the period from 1 January 2019 to 30 June 2020. She agreed C
that Kumar paid her rent in cash.
D D
E E
(PW 4)
F 43. Inspector Kwong (PW4) gave evidence that the defendant had F
never held a licence to hold firearms / ammunitions. Besides, he agreed in
G G
cross examination that it was his understanding under Cap. 238 a company
H was not eligible to apply for a licence to hold firearms and ammunitions. H
A responsible officer should apply on behalf of the company, and such a
I I
responsible officer should either be a member of the board of directors or
J any other person who was mainly responsible for the management of the J
company.
K K
L (PW 5) L
44. Mr Hung Chi On (PW5) of Forensics and Training Division
M M
of Cybersecurity and Technology Crime Bureau was called. He had
N
conducted digital forensic examinations on the defendant’s (i) Samsung N
O
mobile phone, (ii) the SIM card and (iii) the memory card. His expertise O
was not challenged and I ruled that he could give evidence as an expert in
P P
his field. His witness statement was produced in which he described which
Q tools he used to retrieve the data from the three items. He was asked about Q
two entries in the “Exported WhatsApp Message Records” (P81) which
R R
showed that the telephone number 56317175 (the defendant said this
S number belonged to Kumar) and 92820426 (the defendant’s phone number) S
started to have WhatsApp messages since 29 June 2018.
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A A
B B
45. PW5 testified how he considered the time and date on P81
C was accurate. I will further deal with his evidence in the paragraphs below. C
D D
Analysis
E 46. In reaching my verdict, I bear in mind that the prosecution has E
the burden to prove the charge against the defendant beyond a reasonable
F F
doubt. The defendant has to prove nothing. I direct myself that I must be
G sure of the defendant’s guilt. G
H H
47. The defendant has a clear record which means that he is less
I likely to commit an offence and is more credible in what he said in the I
VRIs.
J J
K 48. The defendant elected not to testify in both the special and the K
general issues and no adverse inference should be drawn against him for
L L
doing so. However, it means that there is nothing (apart from what he
M claimed in the VRI) from the defence to challenge, to dispute, to weaken M
and to contradict the prosecution case.
N N
O 49. Besides, I remind myself that when drawing inferences from O
the evidence the inference must be the only reasonable inference to draw
P P
against the defendant from the facts proved.
Q Q
50. The VRIs of the defendant comprised both admissions and
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self-serving assertions. I must consider the whole statement, both the
S incriminating parts and the excuses or explanations given in deciding S
where the truth lies. In other words, I give myself directions in accordance
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with the principles laid down in R v Sharp (1988) 1 WLR 7.
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A A
B B
C Ruling on the special issue C
nd
51. Mr Bullet opposed the admission into evidence the 2 VRI
D D
on the ground that it was conducted in breach of Rule III(b) of the Rules
E and Directions for the Questioning of Suspects and the Taking of E
Statements (hereinafter referred to as the Rules) and the court ought
F F
therefore to exercise its discretion to exclude it.
G G
52. Mr Bullet submitted that the defendant had already given
H H
comprehensive and clear answers in the 1st VRI and it was clear that the
I purpose of the 2nd VRI was in order to extract incriminating admissions, I
especially by reference to irrelevant matters including possible uncharged
J J
acts.
K K
53. Besides, most if not all of the questions put in the 2 nd VRI
L L
have been answered with the defendant declining to provide an explanation.
M All were on peripheral and non-probative matters. The defendant was in M
fact exercising his right of silence and it would therefore be improper to
N N
receive the 2nd VRI in evidence or to draw any conclusions as to his
O credibility therefrom. O
P P
54. What Mr Bullet meant by uncharged acts, as far as I
Q understand from him, was that the defendant was a Form 8 holder who was Q
not permitted to take up any employment in Hong Kong. His previous
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involvement with Kumar and the receipt of the subject parcel might be
S considered that there was a pattern of employment between them. S
T T
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A A
B B
55. I find it difficult to understand how, according to what the
C defendant had claimed i.e. to receive parcels for his friend, would mean C
that he had committed an offence under section 38AA of the Immigration
D D
Ordinance, Cap. 115.
E E
56. In any event, Mr Tracy expressed that no reliance was placed
F F
nor any evidence adduced as to ‘uncharged acts’. The defendant’s status
G as a Form 8 holder was necessarily in evidence if only to confirm he was G
legitimately in Hong Kong. The prosecution was certainly not in any way
H H
seeking to suggest or to prove in respect of his conduct as a Form 8 holder
I since 2013 to time of arrest on 23 February 2019 that he had broken the I
law in respect other than that with which he was charged. As such, Mr
J J
Bullet’s concern in relation to uncharged acts simply did not exist.
K K
57. Mr Bullet also said that the 2nd VRI referred to some
L L
WhatsApp messages between the defendant and Kumar, and the
M prosecution relied on the Call Records of PW5 to prove that the time of the M
communications was correct. If so, the prosecution had to produce a s 22A
N N
certificate. I will deal with whether or not a s 22A certificate is required in
O separate paragraph. Now, I want to focus on the Rules. O
P P
58. Rule III(b) of the Rules provides “It is only in exceptional
Q cases that questions relating to the offence should be put to the accused Q
person after he has been charged or informed that he may be prosecuted.
R R
Such questions may be put where they are necessary for the purpose of
S preventing or minimizing harm or loss to some other person or to the public S
or for clearing up an ambiguity in a previous answer or statement.”
T T
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A A
B B
59. The 1st VRI was conducted from 2147 hours to 2350 hours on
C 23 February 2019. According to the testimony of PW6, he took the C
defendant away from the premises at 1455 hours. Upon arrival at Tsim
D D
Sha Tsui police station, he together with the defendant had to go through
E different procedures, namely to report to the Duty Officer; to serve the E
Notice at different times. Finally, it came to a stage to conduct the 1 st VRI.
F F
G 60. Questions asked in the 1st VRI were mainly about the G
defendant’s background; the relationship he had with Kumar; how and
H H
when the communications took place during which Kumar asked him to
I receive the subject parcel; what he had to do upon receipt of the parcel; his I
knowledge, inter alia, about the content of the parcel, the sender, S2S, the
J J
company seal; whether he had obtained a licence; what were the use of the
K items found on the defendant and seized at the premises namely the keys, K
the mobile phones, the receipt in his wallet, the documents in the bedroom;
L L
what were the telephone numbers of his two mobile phones etc. The 1st
M VRI came to an end 10 minutes before midnight. M
N N
61. To the knowledge of PW6, the defendant was charged well
O after the taking of the VRIs i.e. in 2021 after the suspected ammunition was O
examined.
P P
Q 62. In cross examination, PW6 said that the purpose of Q
conducting the 2nd VRI was to make clarifications resulting from the
R R
st nd
answers the defendant gave in the 1 VRI. The 2 VRI was conducted
S from 1649 to 1930 hours on the following day. S
T T
U U
V V
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A A
B B
63. PW6 explained that in the 1st VRI, the defendant said he had
C known Kumar for 2 months. While he was conducting the 2 nd VRI, he C
examined the mobile phone of the defendant. It showed that the defendant
D D
had known Kumar for more than 2 months and had received other parcels
E for Kumar. As such, PW6 considered that he should make enquiries with E
the defendant to clarify these matter.
F F
G 64. Besides, when PW6 said he found a photo of a parcel (see G
photo 40 of book 3) in the defendant’s mobile phone which he considered
H H
it relevant to the present case. Therefore, he considered it necessary to
I clarify with the defendant. I
J J
65. PW6 disagreed that most of the contents of 2 nd VRI was the
K same as that of the 1st VRI. He explained that the questioning of the K
defendant was done through double interpretations, and sometimes the
L L
meanings were not correct which required him to ask again.
M M
66. I note that in the 1st VRI, the questions asked by PW6 mainly
N N
relate to the subject offence. I also note that in the 2 nd VRI, the questions
O asked were mainly focused on the relationship with Kumar, their previous O
dealings, and the contents of the messages found in the defendant’s
P P
Samsung mobile phone. I consider such contents, as they appeared to PW6
Q at that time, relate to the issues of the subject charge i.e. his knowledge of Q
the content of the subject parcel and the relationship with Kumar. The
R R
defendant was asked if he wanted to offer any explanation in respect of
S their previous communications and/or dealings e.g. the communication on S
29 June 2018; 12 July 2018; October to December 2018 and January 2019.
T T
st
These are new areas not covered in the 1 VRI but which were relevant to
U U
V V
- 21 -
A A
B B
the issues of the subject charge, at least, the police were clarifying how
C long he had known Kumar and how well their relationship was. These C
questions were asked as a result of the defendant who said that he had
D D
known Kumar for only 2 months, and had, prior to the subject offence,
E received a parcel for Kumar once. E
F F
67. Having considered the content of the whole 2 nd VRI, PW6 was
G in fact there and then doing exactly what the Rules allow him to do i.e. to G
clear up an ambiguity in a previous answer or statement. He was trying to
H H
clarify how long they had known each other; how many times the
I defendant had received parcels for Kumar, etc. I
J J
68. It is of note that some of the questions asked were repeated in
K the 2nd VRI e.g. about the company seal and the keys of the premises. K
Unlike in the 1st VRI, questions about the company seal and the keys asked
L L
in the 2nd VRI tended to be more specific and were for the purpose of
M clearing ambiguities. M
N N
69. Taking into account all the circumstances of the case, I find
O that PW6 was entitled to make further enquiries so as to place all that was O
said by the defendant in a fair and proper context. I do not consider that
P P
there is a breach of Rule III(b) as alleged by the defence. The questions
Q asked and the answers given were relevant. I do not therefore consider that Q
I should exercise my residual discretion (which should be exercised
R R
nd
sparingly) to rule out the 2 VRI. And, no unfairness is caused to the
S defendant. S
T T
U U
V V
- 22 -
A A
B B
Ruling on the general issue
C 70. The prosecution invited the court to draw an irresistible C
inference that the defendant knew the content of the subject parcel. In this
D D
regard, Mr Tracy contended that in those VRIs, the defendant lied about
E how well and how long he knew Kumar. This is particularly clear when E
his interview accounts are contrasted with the Call Records (P80 and P81
F F
respectively). The prosecution said that:
G (i) the lies were deliberate; G
(ii) the lies were material;
H H
(iii) they have no innocent explanation;
I I
(iv) the lies are independently confirmed as lies by the Call
J Records. J
K K
71. In the course of the trial, Mr Bullet argued that the production
L of the Call Records required a s 22A certificate. In support of this, Mr L
Bullet referred to HKSAR v Fung Hoi Yeung CACC 62/2019 (date of
M M
judgment 15 November 2021) and HKSAR v Li Cheung Yin (HCCC
N 217/2017). N
O O
72. In reply, Mr Tracy said that such a certificate was not required.
P PW5 was called as an expert, a live witness, to prove the consistency of the P
date and time as shown on the Call Records which suggested that there was
Q Q
no defect in the timing mechanism.
R R
73. When Mr Bullet made closing submissions on the issue of a s
S S
22A certificate, I referred him to the judgment of the Court of Appeal
T HKSAR v Fong Hoi Yeung CACC 62/2019 given on 29 July 2022. Mr T
Bullet submitted that he had nothing more to say on this.
U U
V V
- 23 -
A A
B B
C 74. The prosecution called PW5 in order to prove that the date C
and time shown on the Call Records is accurate and so the defendant lied
D D
about how long he had known Kumar and how many times he had received
E parcels for Kumar. E
F F
75. PW5, an expert, gave clear evidence that he had conducted
G digital forensic examinations on the defendant’s (i) Samsung mobile phone, G
(ii) the SIM card and (iii) the memory card; how he retrieved data
H H
therefrom; and how to interpret the Call Records.
I I
76. PW5 gave clear evidence that the server of WhatsApp
J J
correctly recorded the time and date of the two relevant entries referred to
K by the prosecution i.e. serial number 1 and 175 on P81. These two entries K
showed that there were communications between 92820426 (belonged to
L L
the defendant) and 56317175 (belonged to Kumar as described by the
M defendant), and they took place on 29 June 2018 and 2 November 2018 M
respectively.
N N
O 77. PW5 continued to say that the server of WhatsApp correctly O
recorded the time. Every time a message was sent or received, it had to go
P P
through the server of WhatsApp. He had never heard of WhatsApp server
Q giving inaccurate time due to malfunction nor heard of any reports from Q
others finding inaccuracy in WhatsApp server.
R R
S 78. He disagreed in cross examination that the WhatsApp server S
did go down periodically. PW5 explained that if WhatsApp server was
T T
down, one could not use WhatsApp to send and to receive messages at all.
U U
V V
- 24 -
A A
B B
Besides, a WhatsApp user could not manually change the date and time of
C the WhatsApp message. C
D D
79. PW5’s evidence was in fact to some extent not challenged.
E Having considered his testimony, I find PW5 credible and reliable and I E
accept his testimony entirely. PW5 was called as an expert, and he had
F F
never heard that the WhatsApp server was down / malfunctioned or gave
G inaccurate time. I find that the time and date shown on the Call Records G
was accurate and true.
H H
I 80. Given his evidence, I do not consider that a 22A certificate is I
required. A statement contained in a document produced by a computer
J J
shall be admitted in any criminal proceedings as prima facie evidence of
K any fact stated therein if direct oral evidence of that fact would be K
admissible in those proceedings; and the conditions in subsection (2) of s
L L
22A of Cap. 8 are satisfied. Here, we have a live witness, an expert, to
M testify how the entries in the Call Records existed and how accurate the M
time and date as shown therein was true.
N N
O 81. Since I have accepted the evidence of PW5, it means that the O
date and time of the two relevant entries was accurate. In other words, the
P P
communications between the defendant and Kumar started as early as in
Q June 2018. This contradicted what the defendant said in the VRI. The Q
prosecution said that the defendant had told lies.
R R
S 82. The prosecution referred to Yuen Kwai Choi v HKSAR (2003) S
6 HKCFAR 113 relied upon these lies:
T T
U U
V V
- 25 -
A A
B B
(a) as being obviously uttered in a consciousness of guilt
C and in order to distance himself from Kumar and from C
the unlawful contents of the parcel which he received.
D D
They are probative of guilt.
E E
(b) In so far as the VRI’s contain a defence based on
F F
ignorance that the parcel contained ammunition they
G are mixed statements. The lies (even if they were not G
directly probative of guilty) obviously undermine
H H
totally any value which might attach to the defendant’s
I assertions of ignorance in the same VRIs. I
J J
83. On the issue of lies, I have referred myself to the principles
K laid down in Yuen Kwai Choi and the Specimen Directions (Chapter 112). K
L L
84. Chan PJ in Yuen Kwai Choi said :-
M “32. Lies usually affect credibility only. As a matter of law, M
a lie in itself can never prove guilt.
N N
37. In the great majority of cases where the prosecution
O O
contend that an accused is telling lies in the witness box, a
P direction on lies is inappropriate. In case where the rejection P
of any explanation given by an accused almost necessarily
Q leave the jury with no choice but to convict as a matter of Q
logic, or where the jury are asked to decide on the truth of
R R
what an accused said on a central issue in the case, the usual
direction on the burden and standard of proof would
S S
normally be sufficient… In these situations, there is no
T danger of improper use by the jury of a lie told by the T
accused and there is no risk of miscarriage of justice.”
U U
V V
- 26 -
A A
B B
C 85. I consider that a lies direction is not appropriate in the given C
situation. The statement in relation to how long the defendant has known
D D
Kumar and how many times he has received parcels for him appears to
E contradict the Call Records. However, it is a matter which goes to the E
general credibility of the defendant. The statement was about the time and
F F
duration of their relationship. In any event, I do not consider that the
G statement, even if it is a deliberate lie, relates to any material issue of the G
case. It has nothing to do with the central issue of the case i.e. ‘knowledge’
H H
of the content of the subject parcel and so it does not assist the prosecution
I case, not to mention that there could be other innocent motives for such I
discrepancies.
J J
K 86. I now go to consider the central issue of the case: knowledge K
of the defendant.
L L
M 87. Mr Bullet said the prosecution put its case on the basis that M
the defendant was aware of the content of the parcel, but one must know
N N
what one possessed in order to be in possession of it. Not only was the
O defendant never in possession of the parcel, there was also no evidence that O
he was aware of its contents, both hurdles which, it was submitted, the
P P
prosecution failed to surmount.
Q Q
88. In dealing with the central issue of possession, I bear in mind
R R
what the defendant said did not tally with the Call Records. Despite so, I
S still consider that the prosecution has failed to prove the charge against the S
defendant.
T T
U U
V V
- 27 -
A A
B B
89. I find what the defendant said under caution, at scene and at
C the VRIs, coupled with all the relevant circumstances, might be true i.e. he C
received the subject parcel for Kumar and he did not know the content of
D D
it. The reasons for my finding include the following.
E E
90. The defendant said his friend Kumar asked him to receive a
F F
parcel. Kumar is not a fictional character, a non-existent person. The
G movement record and the tenancy record show that a person called Manoj G
Kumar did exist. When the defendant was cautioned for the subject offence
H H
at scene, he immediately volunteered information in relation to Kumar’s
I full name (Manoj Kumar); his whereabouts (in India); his telephone I
number (56317175); his home address (the premises); and his key of the
J J
premises. The information of Kumar’s full name and home address is
K consistent with the movement record and the tenancy agreement. The fact K
that Kumar was, at that time, in India or at least not in Hong Kong was also
L L
consistent with the movement record that Kumar left Hong Kong the day
M before the offence day. There was nothing to contradict what the defendant M
said.
N N
O 91. At the time of the offence, the defendant was not only a friend O
of Kumar, he could also be considered as Kumar’s neighbor, both of them
P P
lived in the same building but different floors. As such, it might be the
Q case, as put forward by the defendant, that it was Kumar who asked him Q
being his neighbor to come up from 3/F to 16/F to receive the parcel for
R R
him. Given that the defendant is a Form 8 holder, which means he is not
S allowed to work in Hong Kong and is therefore always available than S
others who need to work to render assistance. According to PW6, the
T T
defendant appeared at the scene shortly after he called him.
U U
V V
- 28 -
A A
B B
C 92. The defendant denied knowledge of the content of the parcel. C
This saying might be true.
D D
E 93. The only link between the subject parcel and the defendant E
was that his telephone number 92820426 appeared on the Deutsche Post.
F F
Notwithstanding this, there is no evidence that the defendant was the
G importer of the subject parcel. G
H H
94. Besides, the subject parcel was not addressed to the defendant
I personally. It was indeed addressed to S2S, a company which did exist on I
23 February 2019. The documents from the Companies Registry show that
J J
the only director was Jain Shailender. There is no evidence that the
K defendant has a role in S2S. Moreover, the defendant did not bring with K
him the company seal to the premises. When he was asked to put a stamp
L L
on the receipt, he fetched the company zeal which was placed in the under
M shelf of the coffee table of the premises. On the contrary, the name of M
Kumar and his position in S2S being manager was written on the letter
N N
found in the master bedroom of the premises. I am not saying what was
O written on the letter was true. However, it shows, at least, that Kumar and O
S2S (the addressee of the parcel) did have some connections. As described
P P
above, the defendant took no role in S2S. I am unable to see how he was
Q related to S2S which was the addressee of the subject parcel. Q
R R
95. Not only that the defendant has no connection to S2S, he has
S no connection to the premises. The subject parcel was sent to the premises S
but he was not the tenant / occupier of it. Kumar was. At the time of the
T T
controlled-delivery, the defendant was not found in the premises. In fact,
U U
V V
- 29 -
A A
B B
Syed and Abudllah seemed to live there and Abudllah was even asked by
C Syed to sign on the receipt. There is no dispute that the defendant lived C
downstairs. Police conducted a house search at the defendant’s residence
D D
and nothing suspicious was found.
E E
96. Having considered all the evidence of the case including the
F F
above, I consider what the defendant said at scene and repeated in his VRIs
G (and I bear in mind he has a clear record) might be true. As said before, G
the only link between the defendant and the subject parcel was that his
H H
phone number appeared on the Deutsche Post. It is equally consistent with
I the explanation put forward by the defendant i.e. he helped his friend who I
was not in Hong Kong at the material time receive the subject parcel. As
J J
there exists a reasonable doubt, the defendant is acquitted of the charge.
K K
97. As a further note, Mr Bullet argued that the defendant did not
L L
have physical custody and control of the subject parcel. According to the
M evidence, the defendant did not even touch the subject parcel. Given my M
findings above i.e. what the defendant said might be true, it is not necessary
N N
for me to deal with this issue. And it appears that the case to which Mr
O Bullet referred: HKSAR v Mohammed Saleem [2009] 1 HKLRD 369 O
supports his contention.
P P
Q Q
R R
( Wong Sze-lai, Lily )
S District Judge S
T T
U U
V V
A A
B B
DCCC 907/2021
[2023] HKDC 535
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 907 OF 2021 E
F F
------------------------------
G G
HKSAR
H
v H
AHMED Gulzar
I I
------------------------------
J J
Before: Her Honour Judge Wong Sze-lai, Lily
K K
Date: 21 April 2023
L Present: Mr. Maurice Peter Tracy, Counsel-on-fiat, for HKSAR. L
Mr. Andrew Bullett, instructed by Messrs. Lee Law Firm,
M M
assigned by the Director of Legal Aid for the Defendant.
N Offence: Possession of ammunition without a licence N
（無牌管有彈藥）
O O
P P
---------------------------------------
Q Q
REASONS FOR VERDICT
R --------------------------------------- R
S S
T T
U U
V V
-2-
A A
B B
Charge
C 1. The defendant is charged with possession of ammunition C
without a licence, contrary to section 13(1) and (2) of the Firearms and
D D
Ammunition Ordinance, Cap. 238. The particulars of the offence allege
E that the defendant on or about 23rd day of February 2019, in Hong Kong E
had in his possession ammunition namely 3,600 of live blank ammunition,
F F
without a licence. The defendant pleaded not guilty to the offence.
G G
Outline of the case
H H
2. In gist, the prosecution case was that a parcel was sent from
I Germany to Hong Kong which contained 3,600 of live blank ammunition, I
subject matter of the charge. Affixed to the parcel was a customs
J J
declaration header “Deutsche Post” containing the name and address of the
K sender and that of the addressee which is a company called S2S Services K
(HK) Limited (hereinafter referred to as S2S).
L L
M 3. A controlled delivery was made to S2S. At last the defendant M
appeared and signed on the receipt. He was then arrested and he admitted
N N
under caution that his friend Manoj Kumar (hereinafter referred to as
O Kumar) asked him to receive the parcel but he did not know the content of O
the parcel.
P P
Q 4. What he said was recorded in the notebook of the arresting Q
officer who, at a later stage, conducted two Video Recorded Interviews
R R
(VRI) with the defendant. The prosecution, represented by Mr Maurice
S Tracy, sought to adduce the 2 VRIs as evidence against the defendant. S
T T
U U
V V
-3-
A A
B B
5. Mr Andrew Bullet, Counsel for the defendant, opposed the
C admission into evidence of the defendant’s 2 nd VRI. He submitted that the C
nd
defendant did voluntarily attend the 2 VRI but for reasons stated below,
D D
the court should exercise the residual discretion to exclude it. In light of
E the opposition, the trial was conducted by way of alternative procedure, E
and the prosecution called a total of 6 prosecution witnesses (PW).
F F
G Issue of the trial G
6. There is no dispute that the defendant did not hold a licence
H H
under section 13 of the Firearms and Ammunition Ordinance, Cap. 238
I (the Ordinance). I
J J
7. The prosecution submitted that the major issue in this trial is
K whether the prosecution can prove beyond reasonable doubt that the K
defendant knew that the parcel contained ammunition.
L L
M 8. Besides, in the course of the trial, the defence argued that M
whether or not the live blank rounds of ammunition fall within the
N N
definition of the Ordinance, and whether a certificate under section 22A of
O the Evidence Ordinance, Cap. 8 (hereinafter referred to as a 22A O
certificate) was required for the production of the defendant’s mobile
P P
phone records and his WhatsApp messages records (hereinafter
Q collectively referred to as Call Records). Q
R R
9. The prosecution said that PW5 had examined the defendant’s
S mobile phone and retrieved the Call Records. Such Call Records S
contradicted what the defendant said in the VRIs in relation to how long
T T
U U
V V
-4-
A A
B B
and how well he had known Kumar, and how many times he had received
C parcels for Kumar. The prosecution said the defendant had told lies. C
D D
Special issue
E 10. There was no half time submission for the special issue, and I E
ruled there was a case to answer. The defendant elected not to testify.
F F
Having heard submissions from both parties1, I did not consider that it was
G a case where I should exercise my discretion to exclude the 2 nd VRI on G
grounds of unfairness.
H H
I General issue I
11. In respect of the general issue, the defence made a no case
J J
submission2, and the prosecution made a reply3 to it. I ruled that there was
K a prima facie case. Following that, Mr Bullet informed the court that the K
defendant elected not to testify nor called any defence witnesses.
L L
M 12. Both parties then filed written closing submissions 4 and they M
orally addressed me some salient features of the issues involved.
N N
O
Prosecution Case O
13. As previously mentioned, the addressee of the parcel is S2S.
P P
It is agreed under s65B5 of Cap. 221 that S2S was incorporated in Hong
Q Kong under the Companies Ordinance. Cap. 622 on 9 January 2017 and Q
R R
1
MFI-D, Prosecutor’s Skeleton Argument
2
S MFI-F, No case submission - skeleton S
3
MFI-G, Prosecutor’s Note on Definition of Ammuinition
4
MFI-H, Fiat Counsel’s Closing Submissions;
MFI-I, Defence closing submissions; and
T T
MFI-J, Defence closing supplemental submissions
5
The witness statement of Ms Mabel So, Companies Registration Officer of the Companies Registry.
U U
V V
-5-
A A
B B
dissolved on 27 November 2020. The director of S2S was Jain Shailender
C who lived in India. C
D D
14. In respect of how the subject parcel was discovered and
E delivered to S2S, it is admitted under section 65C of the Criminal E
Procedure Ordinance, Cap. 221 that:
F F
a) On 21 February 2019 at 1245 hours, Customs Officer
G Ng Chi Chuen (Ng) of Team 2, Parcel Clearance, Air G
Freight, Airport Section picked for examination an Air
H H
Parcel comprising a carton and contents sent from
I Germany to Hong Kong. It bore parcel number CY 51 I
25 44 44 5 DE. Affixed to the parcel was a Customs
J J
Declaration headed “Deutsche Post” containing the
K following information: K
Sender: Sven Seidler
L L
Mihlenweg 5, 91481 Altershausen,
M Germany M
Address: S2S Services (H.K.) Limited
N N
Room 7, 16F Star Mansion, 2-3 Minden
O Row, Kowloon, Hong Kong O
Telephone: 852-9282 0426
P P
Parcel Number: CY 51254445 DE
Q Date of Posting: 2019-02-06 Q
Total Gross Weight: 18 Kg
R R
Description: Blank Shells for sound light effects
S (Toys) S
T T
U U
V V
-6-
A A
B B
b) Around 1300 hours, Ng supervised another Customs
C Officer Yan Kin Man (Yan) who opened the parcel / C
carton box. It contained 6 large boxes marked “Titan”
D D
each of which contained 8 smaller boxes, each of which
E contained 75 rounds of suspected ammunition, totaling E
3,600 rounds.
F F
G c) Around 1745 hours, Yan handed over to DPC 58673 of G
Crime Intelligence and Support sub-unit, Airport
H H
District Hong Kong Police the following exhibits:
I (i) 3,600 suspected pyrotechnic ammunition; I
(ii) 48 smaller boxes (P8 to P55);
J J
(iii) 6 large boxes (P2 to P7);
K K
(iv) 1 carton box CY 512544445DE
L (P1, hereinafter referred to as the subject parcel); L
M (v) A post packet examination report. M
N N
d) In turn DPC 58673 took the above exhibits to Airport
O Police Station. At about 1805 hours on the same day, O
having again checked the numbers of the exhibits
P P
jointly with members of RCU NTS, he handed over to
Q DPC 3750 (PW1) of RCU NTS 1B. Q
R R
(PW 1 & PW 6)
S 15. PW1 (DPC 3750) and PW6 (DPC 8277) were respectively S
assigned to be the exhibit officer and arresting officer in this case. Their
T T
testimony corroborated with each other.
U U
V V
-7-
A A
B B
C 16. On 21 February 2019, PW1 went to the Airport Police Station C
and met DPC 58673 who handed over to him the subject parcel.
D D
E 17. At 0635 hours on 23 February 2019, PW1 and PW6 received E
instructions to dress themselves as postal officers of Hong Kong Post and
F F
to conduct a controlled delivery of the subject parcel to the address
G provided in the Deutsche Post. In cross examination, PW1 agreed that he G
was instructed to arrest anyone who signed on the receipt of the parcel
H H
whereas PW6 said that the instruction was to arrest the person who
I received the parcel. I
J J
18. At 0930 hours, they brought along with them the parcel which
K was placed on a cart and arrived in front of Room 7 of 16/F Star Mansion, K
2-3 Minden Row, Tsim Sha Tsui, Kowloon (“the premises”) i.e. the
L L
address appeared on the subject parcel. PW6 knocked on the door of the
M premises and PW1 stood on his right. M
N N
19. It is not in dispute that there were two men inside the premises
O and they were later known to be Ahmed Abdullah (“Abdullah”) and Syed O
Muhammad Aslam (“Syed”). Abdullah opened the door and PW6 told him
P P
that he had a parcel with him. Abdullah then entered the first room of the
Q premises and talked to another person in a foreign language. Syed walked Q
out from the first room and opened the iron gate. PW6 explained to him in
R R
English that he was there to deliver the subject parcel. Syed looked at the
S address which appeared on the parcel. PW6 described that Syed seemed S
to be pressing his mobile phone to call someone. PW1 said he saw Syed
T T
using a mobile phone to call and to speak to someone in a foreign language.
U U
V V
-8-
A A
B B
Afterwards, Syed instructed Abdullah to sign to acknowledge receipt of the
C subject parcel. C
D D
20. PW6 enquired whether Syed or Abudullah was the contact
E person of mobile number 92820426 (which appeared on the parcel). They E
denied being the contact person for that number. As a result, PW6 called
F F
that number and a man answered the call. At first PW1 spoke in Chinese
G but he then spoke in English: G
PW1: Are you have an air mail package.
H H
I am at Room 7, 16/F, Star Mansion, Minden Row
I Man: Yes I
PW1: how long you come back here take the parcel
J J
Man: 10 minutes
K PW1: See you later K
L L
21. While PW1 and PW6 were waiting outside the premises, they
M noticed that Abdullah was sitting on the sofa in the living room and Syed M
walking around. Later, Syed went into the toilet.
N N
O 22. At 0943 hours, the defendant wearing a pair of slippers came O
from the lift of 16/F and walked towards the premises. The defendant
P P
waved hands at PW1 and PW6 and said in Chinese “大佬，唔好意思” (Big
Q Q
brother, excuse me, transliteration). PW6 pointed at the subject parcel and
R
spoke to him in English “if the parcel was his”, to which the defendant said R
“yes”.
S S
T 23. PW6 handed over the receipt to the defendant who took it and T
walked into the premises. The defendant signed on the receipt. He also
U U
V V
-9-
A A
B B
asked PW1 and PW6 to enter the premises and to place the parcel in front
C of the TV in the living room. PW6 asked the defendant for a company seal C
of S2S for verification. PW6 saw the defendant take out a company seal
D D
from the under shelf of the coffee table in the living room and stamped the
E receipt. After that, the defendant put the company seal into the right pocket E
of his jacket.
F F
G 24. PW6 noticed that the information of the company seal tallied G
with the information of the subject parcel. He immediately called for
H H
reinforcement. A minute later, i.e. 0946 hours, his colleagues arrived at
I the scene to render assistance. I
J J
25. In cross examination, PW1 agreed that Syed and Abdullah
K appeared to live in the premises and he recalled that one of them had taken K
a shower inside the premises. He saw some upper garments and pants
L L
inside the premises and learnt that both worked in a money changer shop.
M M
26. Inside the premises, there were 2 rooms and one of them was
N N
described by PW6 as a storeroom which was locked at that time. Enquiries
O were made to the defendant, Syed and Abdullah if they had the key to the O
storeroom but they said no. Therefore, PC 5589 broke into the storeroom.
P P
Q 27. At 1000 hours, PW6 arrested the defendant. Under caution the Q
defendant said “My friend Manoj Kumar told me to receive the air parcel,
R R
I don’t know what is inside”. PW6 then asked the defendant a number of
S questions which were, together with the verbal admission, subsequently S
post-recorded in his police notebook. The post record is as follows:
T T
PW6: Where is Manoj Kumar come from?
U U
V V
- 10 -
A A
B B
Def: India.
C PW6: Where is Manoj Kumar now? C
Def: India.
D D
PW6: Do you have any contact of Manoj Kumar?
E Def: His phone number is 56317175 and he lives in here. E
PW6: Do you have any keys of here, Room 7, 16th Floor, Star
F F
Mansion, 2-3 Minden Row, Tsim Sha Tsui, Kowloon?
G Def: Yes, Manoj Kumar gave the keys to me yesterday G
afternoon.
H H
PW6: How many times you receive air parcel for Manoj
I Kumar? I
Def: Two times including this time.”
J J
K 28. It is an admitted fact that Kumar left Hong Kong through K
Hong Kong Airport after 1709 hours on 22 February 2019 (i.e. the day
L L
before the offence date).
M M
29. Syed and Abudllah were also arrested.
N N
O 30. Upon a body search of the defendant by PW6, the following O
items were found:
P P
(i) the company seal from the pocket of the defendant’s
Q blue jacket; Q
(ii) a bunch of 7 keys from the defendant;
R R
(iii) a pink Samsung mobile phone from the right pocket of
S the defendant’s trousers; S
(iv) a blue Nokia mobile phone from the left pocket of the
T T
defendant’s trousers;
U U
V V
- 11 -
A A
B B
(v) a brown wallet from the right rear pocket of the
C defendant’s trousers, and the wallet contained a rent C
receipt in respect of the premises naming Manoj Kumar
D D
and dated 30 January 2019.
E E
31. At 1055 hours, the defendant signed on PW6’s police
F F
notebook that he consented to give the passwords of his two mobile phones
G to the police. G
H H
32. At 1205 hours, upon search of the premises, a DHL envelope
I containing a letter dated 8 January 2019 to S2S was found. The addressee I
was S2S for the attention of ‘Mr Manoj Kumar, Manager”.
J J
K 33. At 1310 hours, Mr Yakoob6 the Urdu interpreter, and Mr CY K
Pang7, the English interpreter, arrived at the scene to assist PW6.
L L
M 34. Around 1430 hours, PW6 took the defendant to his residence M
which was situate at Room 3, 3/F of Star Mansion for a house search.
N N
Nothing suspicious was found. At 1448 hours, the 3 arrestees were
O escorted to Tsim Sha Tsui Police Station. O
P P
35. With the assistance of the two aforementioned interpreters,
Q PW6 issued a total of 4 “Notice to Persons in Custody” to the defendant8. Q
At 1825 hours, PW6 read over the content of his notebook to the defendant
R R
who signed on it.
S S
6
His witness statement, P104, is admitted under s65B, Cap. 221
T 7 T
His witness statement, P102, is admitted under s65B, Cap. 221
8 st
1 Notice at 1537 hours [P71]; 2nd Notice at 1805 hours [P72]; 3rd Notice at 2115 hours [P73] and 4th
Notice at 16720 hours on 24 February 2019 [P74].
U U
V V
- 12 -
A A
B B
C 36. At 2140 hours, PW6 conducted the 1st VRI with the defendant C
in the presence of Mr CY Pang and Mr Yakoob. On the following day i.e.
D D
24 February 2019 at 1649 hours, PW6 took the 2 nd VRI in the presence of
E Mr Ahmed9, an Urdu interpreter, and Mr Pang. The 2 VRIs were played in E
court.
F F
G The gist of the VRI G
37. In the 1st VRI, the defendant said:
H H
(i) he came to HK from Pakistan in 2013;
I (ii) he knew Kumar for 2 months; Kumar is an Indian male I
who used to live in India; he had no deep relationship
J J
with Kumar, just causal friend; he knew the WhatsApp
K number of Kumar 5631 7175; K
(iii) the Nokia phone belonged to him;
L L
(iv) the Samsung phone belonged to him; it was an internet
M phone and Kumar’s phone number was stored in it; M
(v) he had used the number 9282 0426 for a very long time
N N
and had never given this number to anyone for use;
O (vi) he used WhatsApp for contacts and the name Bhalla Jee O
stored in the phone referred to Kumar;
P P
(vii) Kumar had previously asked him once to receive the
Q parcel which was in late January 2019; Q
(viii) on 22 February 2019, he met Kumar in Chungking
R R
Mansion; Kumar said there was a carton to be arrived
S tomorrow or the day after tomorrow; Kumar gave him S
T T
9
His witness statement, P101, is admitted under s65B, Cap. 221
U U
V V
- 13 -
A A
B B
the keys of the premises; Kumar asked him to receive
C the parcel and placed it in his flat; Kumar did not tell C
him what it was; Kumar told him if asked by the courier
D D
to stamp on the parcel, he could get the company seal
E from the coffee table in the living room; it was the first E
time he saw the company seal;
F F
(ix) he simply helped his friend to receive the parcel;
G (x) the receipt found in his wallet was given by Kumar on G
22 February;
H H
(xi) he had never heard of S2S; had no relationship with
I S2S; did not know the relationship between S2S and the I
address of the premises; did not know why his mobile
J J
phone number appeared on the Deutsche Post of the
K subject parcel. K
L L
38. In the 2nd VRI, the defendant was asked again about his
M knowledge of the parcel, the keys, the company seal and how long he had M
known Kumar. Regarding these matters, he maintained the version he gave
N N
in the 1st VRI. He also said he knew little English. He was asked if he had
O anything to say in respect of the following matters: O
(i) when he was shown two screen shots which captured
P P
from the WhatsApp communication he had with Kumar
Q on 29 June 2018, D had nothing to explain; Q
(ii) the defendant was shown a photo of a TV dated 12 July
R R
2018 which was sent to Kumar, the defendant offered
S no explanation; S
T T
U U
V V
- 14 -
A A
B B
(iii) on 3 November 2018 Kumar sent a picture to the
C defendant in relation to a shipment of DHL. D said he C
did not know about and did not remember;
D D
(iv) there were other messages including audio messages
E between them which took place in November and E
December 2018, the defendant said he did not
F F
remember.
G G
(PW 2)
H
39. Mr Benjamin Wong, forensic firearms examiner, was called H
to give expert evidence. Taking into account that Mr Wong had given
I I
expert evidence before, the qualifications he had attained, the training he
J had received and that there was no dispute as to his expertise, I ruled that J
he could give evidence as an expert in his field. Mr Wong’s 13 witness
K K
statements, almost identical in content, were produced.
L L
40. For reasons which would be apparent later, there is no need to
M M
rehearse the evidence of PW2.
N N
(PW 3)
O O
41. PW3 is Madam Hwan who is the landlady of the premises.
P She was tendered for cross examination. She agreed that in June 2018 she P
signed a tenancy agreement with the tenant Bhalla Sanjeev for the period
Q Q
from 1 July 2018 to 30 June 2020. The tenancy agreement was shown to
R her but she said she could not recall the name of the tenant nor read English. R
She remembered that the tenant told her two other persons would live in
S S
the premises.
T T
U U
V V
- 15 -
A A
B B
42. She also agreed that she entered a tenancy agreement with
C Kumar for the period from 1 January 2019 to 30 June 2020. She agreed C
that Kumar paid her rent in cash.
D D
E E
(PW 4)
F 43. Inspector Kwong (PW4) gave evidence that the defendant had F
never held a licence to hold firearms / ammunitions. Besides, he agreed in
G G
cross examination that it was his understanding under Cap. 238 a company
H was not eligible to apply for a licence to hold firearms and ammunitions. H
A responsible officer should apply on behalf of the company, and such a
I I
responsible officer should either be a member of the board of directors or
J any other person who was mainly responsible for the management of the J
company.
K K
L (PW 5) L
44. Mr Hung Chi On (PW5) of Forensics and Training Division
M M
of Cybersecurity and Technology Crime Bureau was called. He had
N
conducted digital forensic examinations on the defendant’s (i) Samsung N
O
mobile phone, (ii) the SIM card and (iii) the memory card. His expertise O
was not challenged and I ruled that he could give evidence as an expert in
P P
his field. His witness statement was produced in which he described which
Q tools he used to retrieve the data from the three items. He was asked about Q
two entries in the “Exported WhatsApp Message Records” (P81) which
R R
showed that the telephone number 56317175 (the defendant said this
S number belonged to Kumar) and 92820426 (the defendant’s phone number) S
started to have WhatsApp messages since 29 June 2018.
T T
U U
V V
- 16 -
A A
B B
45. PW5 testified how he considered the time and date on P81
C was accurate. I will further deal with his evidence in the paragraphs below. C
D D
Analysis
E 46. In reaching my verdict, I bear in mind that the prosecution has E
the burden to prove the charge against the defendant beyond a reasonable
F F
doubt. The defendant has to prove nothing. I direct myself that I must be
G sure of the defendant’s guilt. G
H H
47. The defendant has a clear record which means that he is less
I likely to commit an offence and is more credible in what he said in the I
VRIs.
J J
K 48. The defendant elected not to testify in both the special and the K
general issues and no adverse inference should be drawn against him for
L L
doing so. However, it means that there is nothing (apart from what he
M claimed in the VRI) from the defence to challenge, to dispute, to weaken M
and to contradict the prosecution case.
N N
O 49. Besides, I remind myself that when drawing inferences from O
the evidence the inference must be the only reasonable inference to draw
P P
against the defendant from the facts proved.
Q Q
50. The VRIs of the defendant comprised both admissions and
R R
self-serving assertions. I must consider the whole statement, both the
S incriminating parts and the excuses or explanations given in deciding S
where the truth lies. In other words, I give myself directions in accordance
T T
with the principles laid down in R v Sharp (1988) 1 WLR 7.
U U
V V
- 17 -
A A
B B
C Ruling on the special issue C
nd
51. Mr Bullet opposed the admission into evidence the 2 VRI
D D
on the ground that it was conducted in breach of Rule III(b) of the Rules
E and Directions for the Questioning of Suspects and the Taking of E
Statements (hereinafter referred to as the Rules) and the court ought
F F
therefore to exercise its discretion to exclude it.
G G
52. Mr Bullet submitted that the defendant had already given
H H
comprehensive and clear answers in the 1st VRI and it was clear that the
I purpose of the 2nd VRI was in order to extract incriminating admissions, I
especially by reference to irrelevant matters including possible uncharged
J J
acts.
K K
53. Besides, most if not all of the questions put in the 2 nd VRI
L L
have been answered with the defendant declining to provide an explanation.
M All were on peripheral and non-probative matters. The defendant was in M
fact exercising his right of silence and it would therefore be improper to
N N
receive the 2nd VRI in evidence or to draw any conclusions as to his
O credibility therefrom. O
P P
54. What Mr Bullet meant by uncharged acts, as far as I
Q understand from him, was that the defendant was a Form 8 holder who was Q
not permitted to take up any employment in Hong Kong. His previous
R R
involvement with Kumar and the receipt of the subject parcel might be
S considered that there was a pattern of employment between them. S
T T
U U
V V
- 18 -
A A
B B
55. I find it difficult to understand how, according to what the
C defendant had claimed i.e. to receive parcels for his friend, would mean C
that he had committed an offence under section 38AA of the Immigration
D D
Ordinance, Cap. 115.
E E
56. In any event, Mr Tracy expressed that no reliance was placed
F F
nor any evidence adduced as to ‘uncharged acts’. The defendant’s status
G as a Form 8 holder was necessarily in evidence if only to confirm he was G
legitimately in Hong Kong. The prosecution was certainly not in any way
H H
seeking to suggest or to prove in respect of his conduct as a Form 8 holder
I since 2013 to time of arrest on 23 February 2019 that he had broken the I
law in respect other than that with which he was charged. As such, Mr
J J
Bullet’s concern in relation to uncharged acts simply did not exist.
K K
57. Mr Bullet also said that the 2nd VRI referred to some
L L
WhatsApp messages between the defendant and Kumar, and the
M prosecution relied on the Call Records of PW5 to prove that the time of the M
communications was correct. If so, the prosecution had to produce a s 22A
N N
certificate. I will deal with whether or not a s 22A certificate is required in
O separate paragraph. Now, I want to focus on the Rules. O
P P
58. Rule III(b) of the Rules provides “It is only in exceptional
Q cases that questions relating to the offence should be put to the accused Q
person after he has been charged or informed that he may be prosecuted.
R R
Such questions may be put where they are necessary for the purpose of
S preventing or minimizing harm or loss to some other person or to the public S
or for clearing up an ambiguity in a previous answer or statement.”
T T
U U
V V
- 19 -
A A
B B
59. The 1st VRI was conducted from 2147 hours to 2350 hours on
C 23 February 2019. According to the testimony of PW6, he took the C
defendant away from the premises at 1455 hours. Upon arrival at Tsim
D D
Sha Tsui police station, he together with the defendant had to go through
E different procedures, namely to report to the Duty Officer; to serve the E
Notice at different times. Finally, it came to a stage to conduct the 1 st VRI.
F F
G 60. Questions asked in the 1st VRI were mainly about the G
defendant’s background; the relationship he had with Kumar; how and
H H
when the communications took place during which Kumar asked him to
I receive the subject parcel; what he had to do upon receipt of the parcel; his I
knowledge, inter alia, about the content of the parcel, the sender, S2S, the
J J
company seal; whether he had obtained a licence; what were the use of the
K items found on the defendant and seized at the premises namely the keys, K
the mobile phones, the receipt in his wallet, the documents in the bedroom;
L L
what were the telephone numbers of his two mobile phones etc. The 1st
M VRI came to an end 10 minutes before midnight. M
N N
61. To the knowledge of PW6, the defendant was charged well
O after the taking of the VRIs i.e. in 2021 after the suspected ammunition was O
examined.
P P
Q 62. In cross examination, PW6 said that the purpose of Q
conducting the 2nd VRI was to make clarifications resulting from the
R R
st nd
answers the defendant gave in the 1 VRI. The 2 VRI was conducted
S from 1649 to 1930 hours on the following day. S
T T
U U
V V
- 20 -
A A
B B
63. PW6 explained that in the 1st VRI, the defendant said he had
C known Kumar for 2 months. While he was conducting the 2 nd VRI, he C
examined the mobile phone of the defendant. It showed that the defendant
D D
had known Kumar for more than 2 months and had received other parcels
E for Kumar. As such, PW6 considered that he should make enquiries with E
the defendant to clarify these matter.
F F
G 64. Besides, when PW6 said he found a photo of a parcel (see G
photo 40 of book 3) in the defendant’s mobile phone which he considered
H H
it relevant to the present case. Therefore, he considered it necessary to
I clarify with the defendant. I
J J
65. PW6 disagreed that most of the contents of 2 nd VRI was the
K same as that of the 1st VRI. He explained that the questioning of the K
defendant was done through double interpretations, and sometimes the
L L
meanings were not correct which required him to ask again.
M M
66. I note that in the 1st VRI, the questions asked by PW6 mainly
N N
relate to the subject offence. I also note that in the 2 nd VRI, the questions
O asked were mainly focused on the relationship with Kumar, their previous O
dealings, and the contents of the messages found in the defendant’s
P P
Samsung mobile phone. I consider such contents, as they appeared to PW6
Q at that time, relate to the issues of the subject charge i.e. his knowledge of Q
the content of the subject parcel and the relationship with Kumar. The
R R
defendant was asked if he wanted to offer any explanation in respect of
S their previous communications and/or dealings e.g. the communication on S
29 June 2018; 12 July 2018; October to December 2018 and January 2019.
T T
st
These are new areas not covered in the 1 VRI but which were relevant to
U U
V V
- 21 -
A A
B B
the issues of the subject charge, at least, the police were clarifying how
C long he had known Kumar and how well their relationship was. These C
questions were asked as a result of the defendant who said that he had
D D
known Kumar for only 2 months, and had, prior to the subject offence,
E received a parcel for Kumar once. E
F F
67. Having considered the content of the whole 2 nd VRI, PW6 was
G in fact there and then doing exactly what the Rules allow him to do i.e. to G
clear up an ambiguity in a previous answer or statement. He was trying to
H H
clarify how long they had known each other; how many times the
I defendant had received parcels for Kumar, etc. I
J J
68. It is of note that some of the questions asked were repeated in
K the 2nd VRI e.g. about the company seal and the keys of the premises. K
Unlike in the 1st VRI, questions about the company seal and the keys asked
L L
in the 2nd VRI tended to be more specific and were for the purpose of
M clearing ambiguities. M
N N
69. Taking into account all the circumstances of the case, I find
O that PW6 was entitled to make further enquiries so as to place all that was O
said by the defendant in a fair and proper context. I do not consider that
P P
there is a breach of Rule III(b) as alleged by the defence. The questions
Q asked and the answers given were relevant. I do not therefore consider that Q
I should exercise my residual discretion (which should be exercised
R R
nd
sparingly) to rule out the 2 VRI. And, no unfairness is caused to the
S defendant. S
T T
U U
V V
- 22 -
A A
B B
Ruling on the general issue
C 70. The prosecution invited the court to draw an irresistible C
inference that the defendant knew the content of the subject parcel. In this
D D
regard, Mr Tracy contended that in those VRIs, the defendant lied about
E how well and how long he knew Kumar. This is particularly clear when E
his interview accounts are contrasted with the Call Records (P80 and P81
F F
respectively). The prosecution said that:
G (i) the lies were deliberate; G
(ii) the lies were material;
H H
(iii) they have no innocent explanation;
I I
(iv) the lies are independently confirmed as lies by the Call
J Records. J
K K
71. In the course of the trial, Mr Bullet argued that the production
L of the Call Records required a s 22A certificate. In support of this, Mr L
Bullet referred to HKSAR v Fung Hoi Yeung CACC 62/2019 (date of
M M
judgment 15 November 2021) and HKSAR v Li Cheung Yin (HCCC
N 217/2017). N
O O
72. In reply, Mr Tracy said that such a certificate was not required.
P PW5 was called as an expert, a live witness, to prove the consistency of the P
date and time as shown on the Call Records which suggested that there was
Q Q
no defect in the timing mechanism.
R R
73. When Mr Bullet made closing submissions on the issue of a s
S S
22A certificate, I referred him to the judgment of the Court of Appeal
T HKSAR v Fong Hoi Yeung CACC 62/2019 given on 29 July 2022. Mr T
Bullet submitted that he had nothing more to say on this.
U U
V V
- 23 -
A A
B B
C 74. The prosecution called PW5 in order to prove that the date C
and time shown on the Call Records is accurate and so the defendant lied
D D
about how long he had known Kumar and how many times he had received
E parcels for Kumar. E
F F
75. PW5, an expert, gave clear evidence that he had conducted
G digital forensic examinations on the defendant’s (i) Samsung mobile phone, G
(ii) the SIM card and (iii) the memory card; how he retrieved data
H H
therefrom; and how to interpret the Call Records.
I I
76. PW5 gave clear evidence that the server of WhatsApp
J J
correctly recorded the time and date of the two relevant entries referred to
K by the prosecution i.e. serial number 1 and 175 on P81. These two entries K
showed that there were communications between 92820426 (belonged to
L L
the defendant) and 56317175 (belonged to Kumar as described by the
M defendant), and they took place on 29 June 2018 and 2 November 2018 M
respectively.
N N
O 77. PW5 continued to say that the server of WhatsApp correctly O
recorded the time. Every time a message was sent or received, it had to go
P P
through the server of WhatsApp. He had never heard of WhatsApp server
Q giving inaccurate time due to malfunction nor heard of any reports from Q
others finding inaccuracy in WhatsApp server.
R R
S 78. He disagreed in cross examination that the WhatsApp server S
did go down periodically. PW5 explained that if WhatsApp server was
T T
down, one could not use WhatsApp to send and to receive messages at all.
U U
V V
- 24 -
A A
B B
Besides, a WhatsApp user could not manually change the date and time of
C the WhatsApp message. C
D D
79. PW5’s evidence was in fact to some extent not challenged.
E Having considered his testimony, I find PW5 credible and reliable and I E
accept his testimony entirely. PW5 was called as an expert, and he had
F F
never heard that the WhatsApp server was down / malfunctioned or gave
G inaccurate time. I find that the time and date shown on the Call Records G
was accurate and true.
H H
I 80. Given his evidence, I do not consider that a 22A certificate is I
required. A statement contained in a document produced by a computer
J J
shall be admitted in any criminal proceedings as prima facie evidence of
K any fact stated therein if direct oral evidence of that fact would be K
admissible in those proceedings; and the conditions in subsection (2) of s
L L
22A of Cap. 8 are satisfied. Here, we have a live witness, an expert, to
M testify how the entries in the Call Records existed and how accurate the M
time and date as shown therein was true.
N N
O 81. Since I have accepted the evidence of PW5, it means that the O
date and time of the two relevant entries was accurate. In other words, the
P P
communications between the defendant and Kumar started as early as in
Q June 2018. This contradicted what the defendant said in the VRI. The Q
prosecution said that the defendant had told lies.
R R
S 82. The prosecution referred to Yuen Kwai Choi v HKSAR (2003) S
6 HKCFAR 113 relied upon these lies:
T T
U U
V V
- 25 -
A A
B B
(a) as being obviously uttered in a consciousness of guilt
C and in order to distance himself from Kumar and from C
the unlawful contents of the parcel which he received.
D D
They are probative of guilt.
E E
(b) In so far as the VRI’s contain a defence based on
F F
ignorance that the parcel contained ammunition they
G are mixed statements. The lies (even if they were not G
directly probative of guilty) obviously undermine
H H
totally any value which might attach to the defendant’s
I assertions of ignorance in the same VRIs. I
J J
83. On the issue of lies, I have referred myself to the principles
K laid down in Yuen Kwai Choi and the Specimen Directions (Chapter 112). K
L L
84. Chan PJ in Yuen Kwai Choi said :-
M “32. Lies usually affect credibility only. As a matter of law, M
a lie in itself can never prove guilt.
N N
37. In the great majority of cases where the prosecution
O O
contend that an accused is telling lies in the witness box, a
P direction on lies is inappropriate. In case where the rejection P
of any explanation given by an accused almost necessarily
Q leave the jury with no choice but to convict as a matter of Q
logic, or where the jury are asked to decide on the truth of
R R
what an accused said on a central issue in the case, the usual
direction on the burden and standard of proof would
S S
normally be sufficient… In these situations, there is no
T danger of improper use by the jury of a lie told by the T
accused and there is no risk of miscarriage of justice.”
U U
V V
- 26 -
A A
B B
C 85. I consider that a lies direction is not appropriate in the given C
situation. The statement in relation to how long the defendant has known
D D
Kumar and how many times he has received parcels for him appears to
E contradict the Call Records. However, it is a matter which goes to the E
general credibility of the defendant. The statement was about the time and
F F
duration of their relationship. In any event, I do not consider that the
G statement, even if it is a deliberate lie, relates to any material issue of the G
case. It has nothing to do with the central issue of the case i.e. ‘knowledge’
H H
of the content of the subject parcel and so it does not assist the prosecution
I case, not to mention that there could be other innocent motives for such I
discrepancies.
J J
K 86. I now go to consider the central issue of the case: knowledge K
of the defendant.
L L
M 87. Mr Bullet said the prosecution put its case on the basis that M
the defendant was aware of the content of the parcel, but one must know
N N
what one possessed in order to be in possession of it. Not only was the
O defendant never in possession of the parcel, there was also no evidence that O
he was aware of its contents, both hurdles which, it was submitted, the
P P
prosecution failed to surmount.
Q Q
88. In dealing with the central issue of possession, I bear in mind
R R
what the defendant said did not tally with the Call Records. Despite so, I
S still consider that the prosecution has failed to prove the charge against the S
defendant.
T T
U U
V V
- 27 -
A A
B B
89. I find what the defendant said under caution, at scene and at
C the VRIs, coupled with all the relevant circumstances, might be true i.e. he C
received the subject parcel for Kumar and he did not know the content of
D D
it. The reasons for my finding include the following.
E E
90. The defendant said his friend Kumar asked him to receive a
F F
parcel. Kumar is not a fictional character, a non-existent person. The
G movement record and the tenancy record show that a person called Manoj G
Kumar did exist. When the defendant was cautioned for the subject offence
H H
at scene, he immediately volunteered information in relation to Kumar’s
I full name (Manoj Kumar); his whereabouts (in India); his telephone I
number (56317175); his home address (the premises); and his key of the
J J
premises. The information of Kumar’s full name and home address is
K consistent with the movement record and the tenancy agreement. The fact K
that Kumar was, at that time, in India or at least not in Hong Kong was also
L L
consistent with the movement record that Kumar left Hong Kong the day
M before the offence day. There was nothing to contradict what the defendant M
said.
N N
O 91. At the time of the offence, the defendant was not only a friend O
of Kumar, he could also be considered as Kumar’s neighbor, both of them
P P
lived in the same building but different floors. As such, it might be the
Q case, as put forward by the defendant, that it was Kumar who asked him Q
being his neighbor to come up from 3/F to 16/F to receive the parcel for
R R
him. Given that the defendant is a Form 8 holder, which means he is not
S allowed to work in Hong Kong and is therefore always available than S
others who need to work to render assistance. According to PW6, the
T T
defendant appeared at the scene shortly after he called him.
U U
V V
- 28 -
A A
B B
C 92. The defendant denied knowledge of the content of the parcel. C
This saying might be true.
D D
E 93. The only link between the subject parcel and the defendant E
was that his telephone number 92820426 appeared on the Deutsche Post.
F F
Notwithstanding this, there is no evidence that the defendant was the
G importer of the subject parcel. G
H H
94. Besides, the subject parcel was not addressed to the defendant
I personally. It was indeed addressed to S2S, a company which did exist on I
23 February 2019. The documents from the Companies Registry show that
J J
the only director was Jain Shailender. There is no evidence that the
K defendant has a role in S2S. Moreover, the defendant did not bring with K
him the company seal to the premises. When he was asked to put a stamp
L L
on the receipt, he fetched the company zeal which was placed in the under
M shelf of the coffee table of the premises. On the contrary, the name of M
Kumar and his position in S2S being manager was written on the letter
N N
found in the master bedroom of the premises. I am not saying what was
O written on the letter was true. However, it shows, at least, that Kumar and O
S2S (the addressee of the parcel) did have some connections. As described
P P
above, the defendant took no role in S2S. I am unable to see how he was
Q related to S2S which was the addressee of the subject parcel. Q
R R
95. Not only that the defendant has no connection to S2S, he has
S no connection to the premises. The subject parcel was sent to the premises S
but he was not the tenant / occupier of it. Kumar was. At the time of the
T T
controlled-delivery, the defendant was not found in the premises. In fact,
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V V
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A A
B B
Syed and Abudllah seemed to live there and Abudllah was even asked by
C Syed to sign on the receipt. There is no dispute that the defendant lived C
downstairs. Police conducted a house search at the defendant’s residence
D D
and nothing suspicious was found.
E E
96. Having considered all the evidence of the case including the
F F
above, I consider what the defendant said at scene and repeated in his VRIs
G (and I bear in mind he has a clear record) might be true. As said before, G
the only link between the defendant and the subject parcel was that his
H H
phone number appeared on the Deutsche Post. It is equally consistent with
I the explanation put forward by the defendant i.e. he helped his friend who I
was not in Hong Kong at the material time receive the subject parcel. As
J J
there exists a reasonable doubt, the defendant is acquitted of the charge.
K K
97. As a further note, Mr Bullet argued that the defendant did not
L L
have physical custody and control of the subject parcel. According to the
M evidence, the defendant did not even touch the subject parcel. Given my M
findings above i.e. what the defendant said might be true, it is not necessary
N N
for me to deal with this issue. And it appears that the case to which Mr
O Bullet referred: HKSAR v Mohammed Saleem [2009] 1 HKLRD 369 O
supports his contention.
P P
Q Q
R R
( Wong Sze-lai, Lily )
S District Judge S
T T
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V V