A A
B B
DCCC 419/2024
C [2025] HKDC 514 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 419 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I AISHPREET SINGH (D1) I
BALJINDER SINGH (D2)
J J
----------------------------
K K
Before: His Honour Judge Tam in Court
L L
Date: 21 March 2025
M Present: Mr Raffell Andrew J, Counsel on fiat, for HKSAR M
Mr Allan William G, instructed by Mohnani & Associates, for
N N
the 1st and 2nd defendants
O Offences: [1] – [2] Conspiracy to assist the passage within Hong Kong O
of unauthorized entrants (串謀協助未獲授權進境者在香港
P P
境內的旅程)
Q Q
R --------------------------------------- R
REASONS FOR VERDICT
S S
---------------------------------------
T T
U U
V V
-2-
A A
B B
1. D1 and D2 appeared before me each charged with a separate
C Conspiracy to assist the passage within Hong Kong of unauthorized C
entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap
D D
115, and sections 159A and 159C of the Crimes Ordinance, Cap 200.
E E
2. Particulars of Charge 1 are that D1, on or about 28 October
F F
2023, in Hong Kong, conspired with other person(s) unknown to assist the
G passage within Hong Kong of an unknown number of unauthorized G
entrants.
H H
I 3. Particulars of Charge 2 are that D2, on or about 28 October I
2023, in Hong Kong, conspired with other person(s) unknown to assist the
J J
passage within Hong Kong of an unknown number of unauthorized
K entrants. K
L L
4. Both defendants pleaded not guilty rendering a trial of both
M necessary. M
N N
Prosecution case in brief
O O
5. On 28 October 2023, between 8 am and 2:05 pm, 28
P P
unauthorized entrants to Hong Kong were arrested by the police at various
Q points on Po Toi Island, Stanley. On the same day, at about 1640 hours, Q
D1 and D2 were seen chatting with each other at the pier of Po Toi Island.
R R
They were arrested.
S S
6. Both D1 and D2 made admissions (in Punti) under caution
T T
that they were going to assist the passage of unauthorized entrants within
U U
V V
-3-
A A
B B
Hong Kong.
C C
7. D1 was found in possession of cash of $12,057, a car key, and
D D
2 mobile phones.
E E
8. D2 was found in possession of cash of $7,406, 2 car keys, and
F F
one mobile phone.
G G
9. Both D1 and D2’s private cars were found at Stanley. In
H H
addition, 3 mattresses were found inside D1’s car.
I I
Defence case (special issue) in brief
J J
K 10. Neither defendant elected to call evidence during the special K
issue. From the way in which the prosecution witnesses were cross-
L L
examined, it seems that the case for both defendants was that they were not
M cautioned and they could not understand and speak Punti. M
N N
Issues in the case
O O
11. The primary issues in the case have become the credibility and
P P
reliability of PW1 and PW2 as witnesses.
Q Q
Relevant law on conspiracy1
R R
S 12. It is a conspiracy offence for two or more persons to agree S
with one another to commit a substantive offence. Before I can convict a
T T
1
Adapted from Specimen Directions in Jury Trials 2013 Ed Chapter 12
U U
V V
-4-
A A
B B
defendant of conspiracy, I must be sure:
C C
(a) That there was in fact an agreement between two or
D D
more persons to commit that substantive offence; and
E E
(b) That the defendant was a party to that agreement in the
F F
sense that:
G G
(i) He agreed with one or more of the other persons
H H
referred to in the charge that the substantive
I offence should be committed; and I
J J
(ii) At the time of agreeing to this, he intended that
K (in the context of this case) he should carry it out. K
L L
Procedural history
M M
13. Defence challenged the admissibility of the alleged verbal
N N
admissions of the two defendants assuming they were made. This special
O issue was dealt with by way of the alternative procedure. O
P P
14. Prosecution called two witnesses, namely PW1 WPC 27436
Q (Arresting officer of D1), and PW2 PC 26090 (Arresting officer of D2). Q
R R
15. After prosecution closed its case on the special issue, defence
S made no half-time submissions. I ruled that there was a prima facie case S
on the special issue. Neither defendant elected to give or call any evidence.
T T
After I have heard oral submissions from both sides, I ruled that the alleged
U U
V V
-5-
A A
B B
admissions were inadmissible. The reasons for the ruling is contained in
C the Appendix. C
D D
16. After prosecution closed its case on the general issue, defence
E made no case submissions in relation to both charges. Prosecution did not E
resist the application of no case. After considering the remaining evidence,
F F
I agreed there was no case for either of defendants to answer to the
G respective charges. G
H H
Summary of prosecution evidence
I I
PW1 WPC 27436
J J
K 17. On 28 October 2023, at 1640 hours, at Po Toi Island Pier, K
PW1 in uniform saw D1 and D2 together talking to each other. Since her
L L
commander had said that there were still illegal immigrants (“IIs”) at Po
M Toi Island, she suspected that they might be IIs. PW1 approached them M
with her three uniformed teammates (PW2, Sgt 7386, Sgt 8561) for enquiry.
N N
O 18. PW1 asked D1 if he had identity document by saying in Punti O
and English, “Do you have passport or any ID document?” D1 answered
P P
in Punti he had document. D1 showed PW1 his Form 8. PW1 asked D1
Q what he was doing there with D2. D1 said he was there hiking, looking for Q
friends, sightseeing and so on. PW1 felt strange. So she asked D1 to take
R R
out some items from his body to let her see. D1 took out 2 mobile phones,
S a black wallet, a car key and a key in silver colour. PW1 continued to make S
enquiry. D1 said he drove to Stanley and he parked his vehicle at parking
T T
meter on Stanley Beach Road.
U U
V V
-6-
A A
B B
C 19. PW1 saw in the black wallet cash of $12,057. Because D1 C
was a Form 8 holder, was wearing black long jeans saying he was hiking
D D
and he had a car key, and had a large amount of cash, PW1 suspected D1
E was connected with a case of IIs. E
F F
20. PW1 then cautioned D1 (at 4:42 pm). PW1 then asked D1
G how he obtained the money on him. D1 replied, “I am getting $1,000 per G
head to go to Po Toi to pick up countrymen to return to urban area.” PW1
H H
asked D1 where were his countrymen. D1 said, “They were smuggled to
I Po Toi Island. I am looking for them.” I
J J
21. As D1 had admitted he was to bring IIs to urban area, PW1
K arrested him for Assisting IIs to stay in Hong Kong. Then PW1 cautioned K
D1. D1 said in Punti, “You arrest me and I have nothing to say.”
L L
M 22. After arrest, PW1 took D1 back to Police Vessel 56 and set M
sail to Aberdeen Marine Police Base. Then they took land transport to
N N
Parking Meters on Stanley Beach Road. Upon arrival at Meter 00675B,
O PW1 saw a black private car YW524 Toyota Mark X. PW1 opened the car O
door with the car key taken from D1.
P P
Q 23. PW1 searched the car and found 3 mattresses (bed pads). Q
R R
24. Under cross-examination, PW1 said at first contact, she did
S not explain to D1 why she stopped him; reason was that at that time, there S
were a large number of IIs on the island and she did not know what
T T
language D1 and D2 spoke or if they understood her.
U U
V V
-7-
A A
B B
C 25. However, in her witness statement dated 29 October 2023 C
which PW1 confirmed was true and accurate, it was written that “… at that
D D
time, I intercepted [D1] for enquiry. I explained to him the reason for
E interception and enquiry, and then I asked for his identity document.” E
F F
26. The way she explained the reason was this, “According to
G Police Force Ordinance, Cap 232, section 54(2), why are you and D2 here?” G
This happened possibly at the same time when D1 showed her his Form 8.
H H
I 27. PW1 disagreed that her witness statement was different from I
her evidence.
J J
K 28. PW1 had not asked D1 what language he spoke or whether K
D1 understood Punti. She had not asked D1 or D2 what their mother
L L
tongue was; in the case of D1, because D1 all along communicated with
M her in fluent Punti. She had not asked if D1 could read or write Punti. M
N N
29. At the beginning, at the time of checking D1’s identity
O document, although she had suspicion he was an II and therefore O
committing a crime, she had not cautioned him yet because she was still
P P
trying to understand the situation from D1. However, she agreed that she
Q should have. Q
R R
30. PW1 concluded that D1 could understand and speak Punti
S because D1 replied to her in Punti that he had identification document. He S
also answered in Punti further questions asked of him in Punti.
T T
U U
V V
-8-
A A
B B
31. When asked why she did not let D1 go after his initial answer
C that he was there hiking etc, PW1 said she found it strange that while a lot C
of South Asians had landed on the shores at that time, two Form 8 holders
D D
(D1 was stated therein as being of Indian origin) were on the island where
E there were few locals; and it happened that she knew that some people of E
Indian origin were earlier arrested. That was why she continued her
F F
enquiry with D1 by asking what items he had on him. She said words to
G the effect, “I suspect you are involved in a case of IIs, so what items do you G
have on you? Please take them out.” These words were not recorded in
H H
her witness statement because of her negligence.
I I
32. PW1 disagreed she had not said those words.
J J
K 33. PW1 elaborated on how she cautioned D1 at 4:42 pm, “Today K
is 28 October 2023 at 4:42 pm, here is Po Toi Island. I am WPC 27426
L L
xxx, currently attached to Y4 Platoon, PTU KW. I have found upon search
M some money on you which I suspect is in relation to an II case, I now M
caution you, you are not obliged to say anything unless you wish to do so,
N N
but whatever you say may be put into writing and given in evidence.” PW1
O agreed that these words of caution were not recorded in her witness O
statement. After she cautioned D1, the latter made admissions.
P P
Q 34. At 4:42 pm, PW2 was about 8 metres from PW1, exact Q
location uncertain. The two Sgts were standing behind her and she could
R R
not see them.
S S
35. After the arrest of D1 at 1645 hours, and after taking D1 on
T T
board the police launch, PW1 asked D1 at about 1650 hours his mother
U U
V V
-9-
A A
B B
tongue/language was. D1 said in Punti “Punjabi” (later PW1 changed her
C evidence to “Punjabi” in English). C
D D
36. PW1 agreed that she was changing evidence: she was making
E additions, she misspoke and made corrections. E
F F
37. PW1 disagreed D1 never said those words in Punti attributed
G to him after he was cautioned. G
H H
PW2 PC 26090
I I
38. On the same day, at 4:40 pm, PW2 and his three colleagues
J J
(PW1, and the two Sgts) were at Po Toi Island Pier. He stopped D2 and
K asked him to produce his identity document. D2 produced Form 8. PW2 K
made enquiries. D2 talked to him in Cantonese. D2 was carrying a cross-
L L
body bag. In the bag, there were 2 car keys (one Mitubishi and the other
M Volkwagen), one mobile phone, and Octopus card and cash of $7,406. M
N N
39. Because there was no driving licence on D2, PW2 asked him
O where the car keys came from. D2 alleged that both cars belonged to him; O
that the Mitsubishi (YK7487) was parked at Stanley Mound Road.
P P
Q 40. PW2 asked why he appeared there. D2 said he went there for Q
hiking (alone). Upon further questioning, D2 said he ran into D1 in Stanley
R R
and they came over together to Po Toi Island to look around. D2 further
S changed his story and said he was there to drive his countrymen at Po Toi S
Island.
T T
U U
V V
- 10 -
A A
B B
41. At 4:43 pm, PW2 cautioned D2 and asked him what he was
C doing at Po Toi Island. D2 replied in Punti, “I get $1,000 per head to come C
over here to drive my countrymen. My fellow countrymen in afternoon
D D
sneaked into Hong Kong by boat from the Homeland. I come here to pick
E them up to drive them out.” E
F F
42. At 4:45 pm, at Po Toi Island Pier, PW2 declared arrest on D2
G for the offence of Assisting abetting others to enter Hong Kong illegally G
and cautioned him. D2 said, “I have nothing to say.”
H H
I 43. PW2 handcuffed D2. Eventually they left the scene at 5:05 I
pm to go to Police Launch 56. They sailed to Aberdeen Marine Police
J J
Base and later took land transport to Stanley Mound Road. There, at
K Parking Metre 1021B, PW2 found a black Mitsubishi car YK7487. PW2 K
opened the car door with the car key taken from D2. In the storage
L L
compartment next to the driver’s seat was found D2’s driving licence and
M a registration document of the car. M
N N
44. Under cross-examination, PW2 said, before stopping D2, he
O suspected D2 of being an II. When asked why he did not let D2 go after O
seeing his identity document, PW2 said he suspected D2 had illegal items
P P
on him, so he performed a search of D2. PW2 added that before D2 was
Q stopped, D2 upon seeing PW2 turned around and tried to leave. Q
R R
45. When PW2 stopped D2, he said in Punti, “Sir, ID card.”
S S
46. When PW2 was asked if he had explained why he wanted to
T T
look at D2’s identification document, he said yes. He elaborated thus, “Sir,
U U
V V
- 11 -
A A
B B
now according to Police Force Ordinance, Cap 232, (later changed by
C deleting “Cap 232”), Chapter 54 section 2, I ask you to produce ID C
document and undergo a search.” (later the reference to “producing ID
D D
document” was deleted) These words were not recorded anywhere.
E E
47. PW2 later changed his evidence to say that he explained to D2
F F
under what Ordinance he performed the search (ie instead of why he
G wanted to look at D2’s ID document). G
H H
48. When asked after the search, if D2 was still being detained,
I PW2 initially said D2 was not detained, but he could not go because the I
process of stop and search was still in progress. However, later, PW2
J J
changed his evidence to say that D2 was detained. PW2 explained that he
K made a mistake in the earlier answer. Later, PW2 attributed his mistake to K
a misunderstanding.
L L
M 49. Before PW2 stopped D2, he suspected D2 to be an II and to M
have illegal items on him.
N N
O 50. PW2 disagreed D2 had not spoken Punti to PW2. PW2 only O
knew after arrest that D2’s mother tongue was Punjabi.
P P
Q 51. PW2 disagreed D2 was not cautioned in Punti at 4:43 pm. Q
PW2 disagreed D2 had not made admissions in Punti.
R R
S S
T T
U U
V V
- 12 -
A A
B B
My considerations
C C
52. After the alleged admissions of the two defendants have been
D D
ruled inadmissible, there is insufficient remaining evidence to form a case
E on either charge against the corresponding defendant. E
F F
Conclusion
G G
53. For the above reasons, I found D1 not guilty of Charge 1, and
H H
D2 not guilty of Charge 2.
I I
J J
K ( Isaac Tam ) K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
- 13 -
A A
B B
Appendix
C C
Reasons for the Ruling on Special Issue
D D
E 1. Defence objected to the admissibility of the alleged verbal E
admissions of D1 and D2 (assuming they were made) on four grounds:-
F F
G (a) The defendants were never cautioned at their first G
interception;
H H
I (b) The defendants could not speak Punti; Punjabi was I
their mother tongue; they could not understand what the
J J
police officers were saying in Punti;
K K
(c) The defendants at the scene were never explained their
L L
rights and in particular to have a lawyer to consult or
M advise them; M
N N
(d) There were breaches of the 1992 Rules and Directions
O in relation to the defendants; and O
P P
(e) The defendants could not read or write Punti; Punjabi
Q was their mother tongue. Q
R R
2. At submission time, defence did not really persist on grounds
S (c) and (d) above. Rather, defence concentrated on attacking the credibility S
and reliability of PW1 and PW2.
T T
U U
V V
- 14 -
A A
B B
3. Since the defendants did not give evidence, the primary issue
C under the special issue was the credibility and reliability of PW1 and PW2. C
D D
4. PW1 WPC 27436 was not an impressive witness. For a
E summary of her evidence, see the main body of the Reasons for Verdict. E
F F
5. PW1 kept changing her evidence when there was a need to.
G Her evidence in court was inconsistent with her witness statement on the G
aspect of first stopping D1 for the purpose of eliciting ID document. PW1
H H
initially said D1 told her at about 1650 hours that his mother
I tongue/language was “Punjabi” in Punti. When the court noted the I
apparent absurdity of this answer and asked PW1 again in a more elaborate
J J
way, PW1 changed her answer to say D1 said “Punjabi” in English.
K K
6. PW2 PC 26090 was not an impressive witness. For a
L L
summary of his evidence, see the main body of the Reasons for Verdict.
M M
7. Although PW2 changed less of his answers than PW1 did with
N N
hers, there were such occasions. Examples are how he explained his power
O of stop and search to D2, and his understanding of whether D2 was O
detained or not. I believe PW2 was more concerned about his performance
P P
in court as a witness than with assisting the court in getting out the truth.
Q For too many times, PW2 was answering defence’s questions indirectly Q
perhaps as a result of trying to guess why the questions were asked and
R R
trying to pre-empt the follow-up questions. In doing so, PW2 unwittingly
S and unintentionally prolonged the cross-examination process. S
T T
U U
V V
- 15 -
A A
B B
8. At this stage, although I am acutely aware I should not be
C concerned with whether the admissions attributed to D1 and D2 were made, C
the credibility and reliability of PW1 and PW2 as witnesses are nonetheless
D D
critical as to whether I can safely rely on their evidence (and no other
E evidence) to conclude that D1 and D2 were cautioned at the respective E
times and were respectively dealt with in the way as testified by these two
F F
witnesses, in particular, whether D1 and D2 indeed were fully capable of
G communicating with the officers in Punti. G
H H
9. I have a doubt in that. The benefit of that doubt goes to the
I defendants. I
J J
10. As a result, I rule that the alleged admissions of D1 and D2
K are inadmissible and they are therefore excluded from the evidence. K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 419/2024
C [2025] HKDC 514 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 419 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I AISHPREET SINGH (D1) I
BALJINDER SINGH (D2)
J J
----------------------------
K K
Before: His Honour Judge Tam in Court
L L
Date: 21 March 2025
M Present: Mr Raffell Andrew J, Counsel on fiat, for HKSAR M
Mr Allan William G, instructed by Mohnani & Associates, for
N N
the 1st and 2nd defendants
O Offences: [1] – [2] Conspiracy to assist the passage within Hong Kong O
of unauthorized entrants (串謀協助未獲授權進境者在香港
P P
境內的旅程)
Q Q
R --------------------------------------- R
REASONS FOR VERDICT
S S
---------------------------------------
T T
U U
V V
-2-
A A
B B
1. D1 and D2 appeared before me each charged with a separate
C Conspiracy to assist the passage within Hong Kong of unauthorized C
entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap
D D
115, and sections 159A and 159C of the Crimes Ordinance, Cap 200.
E E
2. Particulars of Charge 1 are that D1, on or about 28 October
F F
2023, in Hong Kong, conspired with other person(s) unknown to assist the
G passage within Hong Kong of an unknown number of unauthorized G
entrants.
H H
I 3. Particulars of Charge 2 are that D2, on or about 28 October I
2023, in Hong Kong, conspired with other person(s) unknown to assist the
J J
passage within Hong Kong of an unknown number of unauthorized
K entrants. K
L L
4. Both defendants pleaded not guilty rendering a trial of both
M necessary. M
N N
Prosecution case in brief
O O
5. On 28 October 2023, between 8 am and 2:05 pm, 28
P P
unauthorized entrants to Hong Kong were arrested by the police at various
Q points on Po Toi Island, Stanley. On the same day, at about 1640 hours, Q
D1 and D2 were seen chatting with each other at the pier of Po Toi Island.
R R
They were arrested.
S S
6. Both D1 and D2 made admissions (in Punti) under caution
T T
that they were going to assist the passage of unauthorized entrants within
U U
V V
-3-
A A
B B
Hong Kong.
C C
7. D1 was found in possession of cash of $12,057, a car key, and
D D
2 mobile phones.
E E
8. D2 was found in possession of cash of $7,406, 2 car keys, and
F F
one mobile phone.
G G
9. Both D1 and D2’s private cars were found at Stanley. In
H H
addition, 3 mattresses were found inside D1’s car.
I I
Defence case (special issue) in brief
J J
K 10. Neither defendant elected to call evidence during the special K
issue. From the way in which the prosecution witnesses were cross-
L L
examined, it seems that the case for both defendants was that they were not
M cautioned and they could not understand and speak Punti. M
N N
Issues in the case
O O
11. The primary issues in the case have become the credibility and
P P
reliability of PW1 and PW2 as witnesses.
Q Q
Relevant law on conspiracy1
R R
S 12. It is a conspiracy offence for two or more persons to agree S
with one another to commit a substantive offence. Before I can convict a
T T
1
Adapted from Specimen Directions in Jury Trials 2013 Ed Chapter 12
U U
V V
-4-
A A
B B
defendant of conspiracy, I must be sure:
C C
(a) That there was in fact an agreement between two or
D D
more persons to commit that substantive offence; and
E E
(b) That the defendant was a party to that agreement in the
F F
sense that:
G G
(i) He agreed with one or more of the other persons
H H
referred to in the charge that the substantive
I offence should be committed; and I
J J
(ii) At the time of agreeing to this, he intended that
K (in the context of this case) he should carry it out. K
L L
Procedural history
M M
13. Defence challenged the admissibility of the alleged verbal
N N
admissions of the two defendants assuming they were made. This special
O issue was dealt with by way of the alternative procedure. O
P P
14. Prosecution called two witnesses, namely PW1 WPC 27436
Q (Arresting officer of D1), and PW2 PC 26090 (Arresting officer of D2). Q
R R
15. After prosecution closed its case on the special issue, defence
S made no half-time submissions. I ruled that there was a prima facie case S
on the special issue. Neither defendant elected to give or call any evidence.
T T
After I have heard oral submissions from both sides, I ruled that the alleged
U U
V V
-5-
A A
B B
admissions were inadmissible. The reasons for the ruling is contained in
C the Appendix. C
D D
16. After prosecution closed its case on the general issue, defence
E made no case submissions in relation to both charges. Prosecution did not E
resist the application of no case. After considering the remaining evidence,
F F
I agreed there was no case for either of defendants to answer to the
G respective charges. G
H H
Summary of prosecution evidence
I I
PW1 WPC 27436
J J
K 17. On 28 October 2023, at 1640 hours, at Po Toi Island Pier, K
PW1 in uniform saw D1 and D2 together talking to each other. Since her
L L
commander had said that there were still illegal immigrants (“IIs”) at Po
M Toi Island, she suspected that they might be IIs. PW1 approached them M
with her three uniformed teammates (PW2, Sgt 7386, Sgt 8561) for enquiry.
N N
O 18. PW1 asked D1 if he had identity document by saying in Punti O
and English, “Do you have passport or any ID document?” D1 answered
P P
in Punti he had document. D1 showed PW1 his Form 8. PW1 asked D1
Q what he was doing there with D2. D1 said he was there hiking, looking for Q
friends, sightseeing and so on. PW1 felt strange. So she asked D1 to take
R R
out some items from his body to let her see. D1 took out 2 mobile phones,
S a black wallet, a car key and a key in silver colour. PW1 continued to make S
enquiry. D1 said he drove to Stanley and he parked his vehicle at parking
T T
meter on Stanley Beach Road.
U U
V V
-6-
A A
B B
C 19. PW1 saw in the black wallet cash of $12,057. Because D1 C
was a Form 8 holder, was wearing black long jeans saying he was hiking
D D
and he had a car key, and had a large amount of cash, PW1 suspected D1
E was connected with a case of IIs. E
F F
20. PW1 then cautioned D1 (at 4:42 pm). PW1 then asked D1
G how he obtained the money on him. D1 replied, “I am getting $1,000 per G
head to go to Po Toi to pick up countrymen to return to urban area.” PW1
H H
asked D1 where were his countrymen. D1 said, “They were smuggled to
I Po Toi Island. I am looking for them.” I
J J
21. As D1 had admitted he was to bring IIs to urban area, PW1
K arrested him for Assisting IIs to stay in Hong Kong. Then PW1 cautioned K
D1. D1 said in Punti, “You arrest me and I have nothing to say.”
L L
M 22. After arrest, PW1 took D1 back to Police Vessel 56 and set M
sail to Aberdeen Marine Police Base. Then they took land transport to
N N
Parking Meters on Stanley Beach Road. Upon arrival at Meter 00675B,
O PW1 saw a black private car YW524 Toyota Mark X. PW1 opened the car O
door with the car key taken from D1.
P P
Q 23. PW1 searched the car and found 3 mattresses (bed pads). Q
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24. Under cross-examination, PW1 said at first contact, she did
S not explain to D1 why she stopped him; reason was that at that time, there S
were a large number of IIs on the island and she did not know what
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language D1 and D2 spoke or if they understood her.
U U
V V
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A A
B B
C 25. However, in her witness statement dated 29 October 2023 C
which PW1 confirmed was true and accurate, it was written that “… at that
D D
time, I intercepted [D1] for enquiry. I explained to him the reason for
E interception and enquiry, and then I asked for his identity document.” E
F F
26. The way she explained the reason was this, “According to
G Police Force Ordinance, Cap 232, section 54(2), why are you and D2 here?” G
This happened possibly at the same time when D1 showed her his Form 8.
H H
I 27. PW1 disagreed that her witness statement was different from I
her evidence.
J J
K 28. PW1 had not asked D1 what language he spoke or whether K
D1 understood Punti. She had not asked D1 or D2 what their mother
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tongue was; in the case of D1, because D1 all along communicated with
M her in fluent Punti. She had not asked if D1 could read or write Punti. M
N N
29. At the beginning, at the time of checking D1’s identity
O document, although she had suspicion he was an II and therefore O
committing a crime, she had not cautioned him yet because she was still
P P
trying to understand the situation from D1. However, she agreed that she
Q should have. Q
R R
30. PW1 concluded that D1 could understand and speak Punti
S because D1 replied to her in Punti that he had identification document. He S
also answered in Punti further questions asked of him in Punti.
T T
U U
V V
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A A
B B
31. When asked why she did not let D1 go after his initial answer
C that he was there hiking etc, PW1 said she found it strange that while a lot C
of South Asians had landed on the shores at that time, two Form 8 holders
D D
(D1 was stated therein as being of Indian origin) were on the island where
E there were few locals; and it happened that she knew that some people of E
Indian origin were earlier arrested. That was why she continued her
F F
enquiry with D1 by asking what items he had on him. She said words to
G the effect, “I suspect you are involved in a case of IIs, so what items do you G
have on you? Please take them out.” These words were not recorded in
H H
her witness statement because of her negligence.
I I
32. PW1 disagreed she had not said those words.
J J
K 33. PW1 elaborated on how she cautioned D1 at 4:42 pm, “Today K
is 28 October 2023 at 4:42 pm, here is Po Toi Island. I am WPC 27426
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xxx, currently attached to Y4 Platoon, PTU KW. I have found upon search
M some money on you which I suspect is in relation to an II case, I now M
caution you, you are not obliged to say anything unless you wish to do so,
N N
but whatever you say may be put into writing and given in evidence.” PW1
O agreed that these words of caution were not recorded in her witness O
statement. After she cautioned D1, the latter made admissions.
P P
Q 34. At 4:42 pm, PW2 was about 8 metres from PW1, exact Q
location uncertain. The two Sgts were standing behind her and she could
R R
not see them.
S S
35. After the arrest of D1 at 1645 hours, and after taking D1 on
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board the police launch, PW1 asked D1 at about 1650 hours his mother
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A A
B B
tongue/language was. D1 said in Punti “Punjabi” (later PW1 changed her
C evidence to “Punjabi” in English). C
D D
36. PW1 agreed that she was changing evidence: she was making
E additions, she misspoke and made corrections. E
F F
37. PW1 disagreed D1 never said those words in Punti attributed
G to him after he was cautioned. G
H H
PW2 PC 26090
I I
38. On the same day, at 4:40 pm, PW2 and his three colleagues
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(PW1, and the two Sgts) were at Po Toi Island Pier. He stopped D2 and
K asked him to produce his identity document. D2 produced Form 8. PW2 K
made enquiries. D2 talked to him in Cantonese. D2 was carrying a cross-
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body bag. In the bag, there were 2 car keys (one Mitubishi and the other
M Volkwagen), one mobile phone, and Octopus card and cash of $7,406. M
N N
39. Because there was no driving licence on D2, PW2 asked him
O where the car keys came from. D2 alleged that both cars belonged to him; O
that the Mitsubishi (YK7487) was parked at Stanley Mound Road.
P P
Q 40. PW2 asked why he appeared there. D2 said he went there for Q
hiking (alone). Upon further questioning, D2 said he ran into D1 in Stanley
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and they came over together to Po Toi Island to look around. D2 further
S changed his story and said he was there to drive his countrymen at Po Toi S
Island.
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A A
B B
41. At 4:43 pm, PW2 cautioned D2 and asked him what he was
C doing at Po Toi Island. D2 replied in Punti, “I get $1,000 per head to come C
over here to drive my countrymen. My fellow countrymen in afternoon
D D
sneaked into Hong Kong by boat from the Homeland. I come here to pick
E them up to drive them out.” E
F F
42. At 4:45 pm, at Po Toi Island Pier, PW2 declared arrest on D2
G for the offence of Assisting abetting others to enter Hong Kong illegally G
and cautioned him. D2 said, “I have nothing to say.”
H H
I 43. PW2 handcuffed D2. Eventually they left the scene at 5:05 I
pm to go to Police Launch 56. They sailed to Aberdeen Marine Police
J J
Base and later took land transport to Stanley Mound Road. There, at
K Parking Metre 1021B, PW2 found a black Mitsubishi car YK7487. PW2 K
opened the car door with the car key taken from D2. In the storage
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compartment next to the driver’s seat was found D2’s driving licence and
M a registration document of the car. M
N N
44. Under cross-examination, PW2 said, before stopping D2, he
O suspected D2 of being an II. When asked why he did not let D2 go after O
seeing his identity document, PW2 said he suspected D2 had illegal items
P P
on him, so he performed a search of D2. PW2 added that before D2 was
Q stopped, D2 upon seeing PW2 turned around and tried to leave. Q
R R
45. When PW2 stopped D2, he said in Punti, “Sir, ID card.”
S S
46. When PW2 was asked if he had explained why he wanted to
T T
look at D2’s identification document, he said yes. He elaborated thus, “Sir,
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A A
B B
now according to Police Force Ordinance, Cap 232, (later changed by
C deleting “Cap 232”), Chapter 54 section 2, I ask you to produce ID C
document and undergo a search.” (later the reference to “producing ID
D D
document” was deleted) These words were not recorded anywhere.
E E
47. PW2 later changed his evidence to say that he explained to D2
F F
under what Ordinance he performed the search (ie instead of why he
G wanted to look at D2’s ID document). G
H H
48. When asked after the search, if D2 was still being detained,
I PW2 initially said D2 was not detained, but he could not go because the I
process of stop and search was still in progress. However, later, PW2
J J
changed his evidence to say that D2 was detained. PW2 explained that he
K made a mistake in the earlier answer. Later, PW2 attributed his mistake to K
a misunderstanding.
L L
M 49. Before PW2 stopped D2, he suspected D2 to be an II and to M
have illegal items on him.
N N
O 50. PW2 disagreed D2 had not spoken Punti to PW2. PW2 only O
knew after arrest that D2’s mother tongue was Punjabi.
P P
Q 51. PW2 disagreed D2 was not cautioned in Punti at 4:43 pm. Q
PW2 disagreed D2 had not made admissions in Punti.
R R
S S
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B B
My considerations
C C
52. After the alleged admissions of the two defendants have been
D D
ruled inadmissible, there is insufficient remaining evidence to form a case
E on either charge against the corresponding defendant. E
F F
Conclusion
G G
53. For the above reasons, I found D1 not guilty of Charge 1, and
H H
D2 not guilty of Charge 2.
I I
J J
K ( Isaac Tam ) K
District Judge
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M M
N N
O O
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Q Q
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B B
Appendix
C C
Reasons for the Ruling on Special Issue
D D
E 1. Defence objected to the admissibility of the alleged verbal E
admissions of D1 and D2 (assuming they were made) on four grounds:-
F F
G (a) The defendants were never cautioned at their first G
interception;
H H
I (b) The defendants could not speak Punti; Punjabi was I
their mother tongue; they could not understand what the
J J
police officers were saying in Punti;
K K
(c) The defendants at the scene were never explained their
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rights and in particular to have a lawyer to consult or
M advise them; M
N N
(d) There were breaches of the 1992 Rules and Directions
O in relation to the defendants; and O
P P
(e) The defendants could not read or write Punti; Punjabi
Q was their mother tongue. Q
R R
2. At submission time, defence did not really persist on grounds
S (c) and (d) above. Rather, defence concentrated on attacking the credibility S
and reliability of PW1 and PW2.
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A A
B B
3. Since the defendants did not give evidence, the primary issue
C under the special issue was the credibility and reliability of PW1 and PW2. C
D D
4. PW1 WPC 27436 was not an impressive witness. For a
E summary of her evidence, see the main body of the Reasons for Verdict. E
F F
5. PW1 kept changing her evidence when there was a need to.
G Her evidence in court was inconsistent with her witness statement on the G
aspect of first stopping D1 for the purpose of eliciting ID document. PW1
H H
initially said D1 told her at about 1650 hours that his mother
I tongue/language was “Punjabi” in Punti. When the court noted the I
apparent absurdity of this answer and asked PW1 again in a more elaborate
J J
way, PW1 changed her answer to say D1 said “Punjabi” in English.
K K
6. PW2 PC 26090 was not an impressive witness. For a
L L
summary of his evidence, see the main body of the Reasons for Verdict.
M M
7. Although PW2 changed less of his answers than PW1 did with
N N
hers, there were such occasions. Examples are how he explained his power
O of stop and search to D2, and his understanding of whether D2 was O
detained or not. I believe PW2 was more concerned about his performance
P P
in court as a witness than with assisting the court in getting out the truth.
Q For too many times, PW2 was answering defence’s questions indirectly Q
perhaps as a result of trying to guess why the questions were asked and
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trying to pre-empt the follow-up questions. In doing so, PW2 unwittingly
S and unintentionally prolonged the cross-examination process. S
T T
U U
V V
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A A
B B
8. At this stage, although I am acutely aware I should not be
C concerned with whether the admissions attributed to D1 and D2 were made, C
the credibility and reliability of PW1 and PW2 as witnesses are nonetheless
D D
critical as to whether I can safely rely on their evidence (and no other
E evidence) to conclude that D1 and D2 were cautioned at the respective E
times and were respectively dealt with in the way as testified by these two
F F
witnesses, in particular, whether D1 and D2 indeed were fully capable of
G communicating with the officers in Punti. G
H H
9. I have a doubt in that. The benefit of that doubt goes to the
I defendants. I
J J
10. As a result, I rule that the alleged admissions of D1 and D2
K are inadmissible and they are therefore excluded from the evidence. K
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M M
N N
O O
P P
Q Q
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S S
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V V