A A
B
DCCC 1084/2016 B
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 1084 OF 2016 E
F F
------------------------------------
G HKSAR G
v
H H
KHALID MANSOOR (D1)
I SARFRAZ (D2) I
JAWAD HUSSAIN (D3)
J J
------------------------------------
K K
Before: Deputy District Judge A Yim in Court
L L
Date: 30 October 2017
M Present: Mr Ian Polson, Counsel on Fiat, for HKSAR M
Mr Richard David Donald, instructed by LCP, assigned by the
N N
st
Director of Legal Aid, for the 1 defendant
O O
Mr James H M McGowan, instructed by Oliver C M Chan &
P
Co, assigned by the Director of Legal Aid, for the 2nd
P
defendant
Q Q
Mr Cheung Yiu Leung, instructed by Kevin Ng & Co,
R
assigned by the Director of Legal Aid, for the 3rd defendant R
Offences: Assisting the passage within Hong Kong of unauthorized
S S
entrants（協助未獲授權進境者在香港境內的旅程）
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR VERDICT C
--------------------------------------
D D
E 1. The defendants were jointly charged for one count of assisting E
the passage within Hong Kong of unauthorized entrants, contrary to section
F F
37D(1)(a) of the Immigration Ordinance, Cap. 115.
G G
2. D1 and D3 pleaded not guilty while D2 pleaded guilty but
H H
disputed the facts that he was the central organizer of the offence.
I Conviction of D2 was entered upon his plea and admission of the facts that I
supported the charge, as the fact in dispute had a potentially significant
J J
effect on the level of sentence, a Newton hearing was directed. Further
K because the evidence concerned was inter-related to the case against the K
co-defendants, the Newton hearing was directed to be heard together with
L L
the trial of D1 and D3. Parties raised no objection that the Newton hearing
M be heard together with the trial at the same time. M
N N
3. In December 2016, the Prosecution has served notice to the
O defendants pursuant to section 27 of the Organized and Serious Crimes O
Ordinance, Cap. 455, for enhancement of sentence, on the ground that the
P P
offence was an organized crime. In particular, the two or more acts
Q committed being: assisting the passage to Hong Kong of unauthorized Q
entrants and assisting the passage within Hong Kong of unauthorized
R R
entrants.
S S
T T
U U
V V
-3-
A A
B B
THE PROSECUTION CASE
C C
4. On 14 August 2016 at around 3 am, an object carried a number
D D
of unauthorized entrants (UEs) entered the Hong Kong Waters and the UEs
E on board, including the three UEs mentioned in the charge, landed at Nim E
Wan.
F F
G 5. At about 7:55 am the three defendants hailed a taxi at Nai Wai, G
Tuen Mun and went to Nim Wan Landfill to pick up the three UNs at about
H H
8:22 am, with a view to convey the three UEs to Nai Wai. The three
I defendants and the three UEs were apprehended by police before the taxi I
pull away. The mobile phones of the defendants and the UEs were seized.
J J
K 6. The telephone and WhatsApp records of D2 showed that he K
was one of the prime “organizer” of a syndicate to receive UEs upon their
L L
arrival in Hong Kong by sea and then assist their onwards movement
M within Hong Kong. This was a commercial transaction to the benefit of M
D2 and others. All the defendants were parties to this illegal enterprise.
N N
O THE DEFENCE CASE O
P P
7. 14 August 2016 was the Pakistan National Day. D1 and D3
Q together with other friends had organized a party to celebrate their National Q
Day that morning. D2 was the chef of the event. Soon after they started
R R
the preparation for the food, D2 received a call and asked D1 and D3 to go
S out with him to meet friend(s). The three of them took a taxi heading to S
the Landfill.
T T
U U
V V
-4-
A A
B B
8. On arrival D2 got off for his friend(s), D1 followed D2 to
C check him up. D1 and D3 had no knowledge of the illegal status of the 3 C
UEs. D2 did not expect other UEs to show up, as he all along only intended
D D
to pick up his brother. It was only at that time that his brother requested
E D2 to help the other two. E
F F
9. As the taxi could only take up 4 passengers, D2 asked D1 to
G convey the three UEs in question to his home first and he would return with G
D3 by another taxi.
H H
I MATTERS IN DISPUTE I
J J
10. The three defendants were holders of Form 8 Recognizance
K and at all material times they were of clear record. On 14 August 2016, K
shortly before 8:00 am they hailed the taxi SV1879 to go to the Landfill
L L
and was arrested at around 9:00 am at the entrance of the Landfill.
M M
11. Before the interception, the taxi driver had been told to go
N N
back to the point where he collected the three defendants. At time of the
O interception, D1 was sitting on the front passenger seat, the three UEs were O
sitting at the back while D2 and D3 was outside the taxi. Were D1 and D3
P P
together with D2 and others unknown assisted the three UEs to go to Nai
Q Wai by taxi? Q
R R
12. D2 had pleaded guilty but denied he was the leader or
S mastermind of the offence. Was D2 a prime organizer of this illegal S
enterprise?
T T
U U
V V
-5-
A A
B B
FINDINGS
C C
13. It is for the prosecution to prove his case against D2 beyond
D D
all reasonable doubt and also D1 and D3’s guilt on each and every element
E of the charge beyond all reasonable doubt. The defendants have no burden E
of proof whatsoever.
F F
G 14. The defendants had a clear record, it is less likely that they G
would commit a crime and more likely that they were telling the truth
H H
during the cautioned interview and in their evidence. Admission, if any,
I made during the cautioned interview would only be evidence against the I
maker only.
J J
K 15. All the evidence should be considered as a whole in the light K
of the defence case and the defence submission. The case of each
L L
defendant should be considered separately. Where there is any reasonable
M doubt, the benefit should go to the defendants. M
N N
16. Mr Cheung for D3 referred me to HKSAR v Ivan Chan Man
O Sum CACC 273/2015 a case in which the Court of Appeal has once again O
reiterated the importance of the direction that no adverse inference is to be
P P
drawn unless it is “the only reasonable inference” (para 57).
Q Q
R R
S S
T T
BACKGROUND
U U
V V
-6-
A A
B B
C 17. At 0249 hours on 14 August 2016, the Marine Police Digital C
Radar Surveillance System (DRSS) showed a suspicious object at 0.1
D D
NMSVV She Kou Harbour moving toward Hong Kong Waters at 5 knots.
E E
18. At 0254 hours the said object reached Hong Kong Waters and
F F
moved towards Nim Wan, New Territories. At 0317 hours the object was
G off shore at Nim Wan and at 0322 hours it left Nim Wan and passed out of G
Hong Kong Waters at 0342 hours.
H H
I 19. At 0317 hours the 3 unauthorized entrants specified in the I
charge, namely NAWAZ Muhammad (UE1), AHMED Zulfiqar (UE2) and
J J
ABBAS Qosain (UE3) arrived at Nim Wan. All of them held Pakistani
K passports with no record of entering Hong Kong through a valid K
Immigration entry point.
L L
M 20. At 0715 hours a group of 3 South Asian was seen walking M
along the Nim Wan Road following another group of South Asian at 6-7.
N N
They were carrying rucksack heading to Tuen Mum Town Center away
O from the Landfill. The presence of these people aroused the suspicion of O
Mr Go PW1 who was driving along Nim Wan Road near the Landfill with
P P
his colleagues on board and he made a report to the police after he dropped
Q his colleagues at the Landfill. Q
R R
21. Shortly before 0800 hours at Nai Wai bus stop Tuen Mun, D1-
S D3 hired and boarded the taxi SV1879 driven by Mr Leung PW2. One of S
the defendant took the front passenger seat while the other two sat at the
T T
back. Mr Leung was instructed to go to Nim Wan. During the journey,
U U
V V
-7-
A A
B B
Mr Leung was handed over a mobile phone and he was instructed over the
C phone to go to Nim Wan Landfill. Later the taxi arrived and stopped near C
the entrance of the Landfill. Near the guard post at the entrance of the
D D
Landfill, 3 UEs were seen climbed up from a ditch nearby.
E E
22. Around 0825 hours the police arrived the entrance of the
F F
Landfill where the three defendants were found together with the 3 UEs.
G At around 0900 hours the defendants were arrested. At time of the arrest, G
all three defendants were in possession of mobile telephones (number in
H H
bracket), D1 (64626640) and D3 (97330516) each had a mobile phone
I while D2 (97241486; 95429826) had 2 mobile phones. Whereas UE2 and I
UE3 each were in possession of a mobile telephone.
J J
K 23. Subsequently the police conducted a sweeping operation in K
the Nim Wan area and further arrested 4 Nepalese and 2 Pakistani.
L L
M 24. The phones of the defendants and the UEs were examined by M
the Police Digital Forensics Team, only the call log but not the content of
N N
the WhatsApp communication could be extracted (Referred to Exhibit 69
O & Exhibit P80a for the relevant log record). Police further requested O
assistance from the mobile phone services provider, certain WhatsApp
P P
communication of D2’s phone was extracted (Exhibit P69).
Q Q
THE INCIDENT AT THE LANDFILL
R R
S 25. Mr Leung gave evidence that during the taxi journey he was S
handed over a phone from the back, and instructed to go to the landfill at
T T
Lun Ko Tan (“Landfill”). He drove as instructed and on arrival outside the
U U
V V
-8-
A A
B B
entrance gate of the Landfill, he stopped and parked the taxi at the entrance
C by the pavement. The two at the back alighted and walked to the guard C
post. The two acted as if they were looking for something over there, they
D D
gave him an impression that they were looking for their friend(s). The
E front passenger remained inside his taxi and used hand gesture to ask him E
to drive over to the direction of the other two near the guard post.
F F
G 26. Mr Leung further gave evidence that upon getting close, he G
saw the two passengers climbed up from a ditch then several people
H H
following them. Including the two passengers, there were about 5 people
I outside his taxi. Once his taxi stopped by the guard post, the front I
passenger alighted. The two passengers did not return, people stayed
J J
outside talking. Later several of those outside got into his taxi. He raised
K 4 fingers to remind them his was a four-seat taxi. After his taxi was fully K
loaded, one of the people outside told him go back to Nam Wai, he
L L
understood that meant to be returning to where he collected them. There
M was no staff at the guard post. M
N N
27. All the defendants gave evidence that D1 got out from the taxi
O one minute after D2. Mr Leung was being cross-examined as to whether O
the two rear passengers alighted at different stages and whether they
P P
walked together. Although Mr Leung’s concern was to ensure someone
Q remained behind to look after the unpaid taxi fare, he was sure he saw the Q
two at the back alighted at the same time on either side of the taxi and went
R R
up to the guard post and when he moved closer to the guard post he saw
S the two climbed up from the ditch. There was, however, no mention of any S
climbing up from the ditch by the defendants. I considered and accept Mr
T T
U U
V V
-9-
A A
B B
Leung’s evidence. I considered and reject the defendants’ evidence that
C D1 only went up to D2 after one minute. C
D D
28. It was not disputed that when Mr Leung was about to pull
E away, a private car UD6935 with plain clothes police officers on board E
came and blocked his way. Soon another police vehicle came to the scene.
F F
Police officers ran out from their vehicles and proceeded to intercept and
G enquiry with the 6 South Asian males. Upon police request Mr Leung G
printed out the receipt of the abovementioned journey (Exhibit P48), which
H H
showed the journey started at 0757 hours and the receipt printed out at 0832
I hours. No one attempted to pay the taxi fare yet. To his knowledge the I
journey was to end upon his return to Nai Wai bus stop.
J J
K A JOINT ENTERPRISE? K
L L
29. The three defendants and the three UEs were seen talking at
M the scene in their own language. During the videoed interview, all the M
defendants gave a similar explanation for their presence at the scene. They
N N
boarded the taxi at Nai Wai, went over to the place of arrest to meet a friend
O and D1 was paying the taxi fare when the three UEs boarded the taxi. They O
did not know the three UEs. D2 explained he did not tell the police he was
P P
there to pick up his brother because he was scared as he had never
Q committed any crime before. Q
R R
30. All of the defendants, however, gave evidence that they
S intended to take the same taxi back to Nai Wai, and no payment was S
tendered before their arrest. When the D1 and D2 were shown their
T T
respective answer about “D1 was paying the taxi fare”, they invariably
U U
V V
- 10 -
A A
B B
replied they did not remember what they have said at that time. The fiat
C counsel did not put similar question to D3 again. It could not be mere C
coincidence that the 3 defendants gave the same false account of the event
D D
in their respective interview, I consider they had concocted together in
E order to distance themselves from the 3 UEs found with them at the scene. E
According to D1 and D3 they did not know the illegal status of the 3 UEs,
F F
D2’s brother was only introduced to them at the police station in the case
G of D3 and at Lai Chi Kwok in the case of D1. Why would D1 and D3 want G
to concoct together with D2?
H H
I 31. 14 August 2016 was the Pakistan National Day. Mr I
Muhammad Adnan, the second defence witness (hereinafter referred as
J J
DW) gave evidence that he knew D1 to D3 over two years, D1 to D3 lived
K in Nai Wai, they lived in the same area. On 14 August 2016 he went to a K
friend’s home at Nai Wai to celebrate together with another 10 to 12 friends.
L L
Upon arrival around 6:30 am to 7:00 am D1 to D3 were already there. DW
M further gave evidence that at one stage D2 received a call, and after that he M
said to D1 and D3 “Let’s go with me, we meet some friends and then we
N N
come back”. D1 and D3 then left with D2.
O O
32. DW initially said the party was organized by all the friends
P P
together. When being asked in whose home was the party being held, DW
Q said he did not know whose home was that and went on to say D1, D2 and Q
D3 were living in the same area and in further clarifying he did not know
R R
whose home was that, he said he was only invited to the party by a friend.
S D1 gave similar evidence as his DW, except that he said the party was held S
at his home and to be commenced at 11:00 am, if so, he would be the de
T T
facto host of the party. DW has known the defendants over 2 years, it was
U U
V V
- 11 -
A A
B B
strange that DW did not know that he was at D1’s home. DW was not
C asked what happened to the party without the defendants. C
D D
33. D1 also gave evidence that they started to arrange for the party
E at around 6:30 am when D2 came to his house. Between 7:00 am and 7:30 E
am D2 went out to receive a call, upon return D2 asked him and D3 to go
F F
with him to meet some friends in Tuen Mum, he did not know why he was
G requested to go along. Nothing more was mentioned during the taxi G
journey why it was necessary for him and D3 to accompany D2 to meet his
H H
friend, nor did he ask. If that was the case, why would D1 leave the party
I without finding out more why he was required to go with D2; and why he I
did not make any enquiry when it appeared to him that D2 was not able to
J J
tell the destination and needed to hand over his phone to the driver with the
K taxi was moving further and further away from Tuen Mum to a remote area? K
L L
34. D1 gave evidence that upon arrival the destination, D2 got out
M and said he would come back after he meet friends. About one minute later M
after D2 left, he got off the taxi and went after D2 intending to ask him to
N N
come back quickly, as there were other friends at home and D2 also had to
O do the cooking. He went up and saw D2 with his friends, D2 was talking O
with his friends, in particular D2 was talking to one of the friends later he
P P
found out that person to be Nawaz Muhammed, but he did not hear the
Q conversation suggested by D2’s counsel. He did not know if D2 knew the Q
other two or not. D2 indicated to the taxi driver and the taxi driver came
R R
over. He did not know where D2’s friend came from, he just shook hands
S and greeted with them. D2 asked him to take the 3 men back with him in S
the taxi, and D2 and D3 would come back in another taxi. He did not know
T T
U U
V V
- 12 -
A A
B B
the illegal status of D2’s friends, he thought they were arrested because D2
C and D3 did not have their document with them. C
D D
35. D3 gave evidence that D2 asked him to go together at Tuen
E Mum to meet a friend, he did not know whom he was expected to meet, E
yet he did not ask. During the taxi journey, nothing was mentioned about
F F
the friend whom they were to meet, he did not know why he was asked to
G go together and he and D1 did not ask. On arrival D2 got out first then D1 G
followed. D3 agreed with D2’s counsel that D1 got out from the taxi a
H H
minute or so afterward, however this was contrary to what Mr Leung
I observed. I considered and reject any evidence that D1 and D2 were not I
alighting the taxi approximately at the same time.
J J
K 36. D3 gave evidence that from a distance he saw D1 and D2 were K
standing and talking with some other people. He did not know those other
L L
people, he did not know from where they came from and why they were
M there. He followed D1’s indication to ask the taxi driver moved over to M
them. After the taxi moved and stopped by them, he got out of it to greet
N N
D2’s friends. Then the 3 men got into the back of the taxi and D1 got into
O the front. He only learnt about the status of those people upon arrested by O
the Police.
P P
Q 37. According to the defence case, the party celebrating the Q
National Day was held at D1’s home, D3 was one of the organizer while
R R
D2 was the chef, they have collected $4,000 from the friends and they were
S yet to complete the preparation of the party food. They took the party as S
an important event and started to do preparation early in the morning. D1
T T
and D3 gave evidence respectively that in the course of the preparation
U U
V V
- 13 -
A A
B B
they were only told by D2 to meet friend(s) at Tuen Mum, they were not
C told why they were required to go and the identity of the friend(s). Both C
D1 and D3 said they did not know, they did not ask for the reason and they
D D
just went with D2. They may not be provided with an answer but I find it
E unbelievable that they did not even ask in the circumstances they alleged. E
F F
38. It is noted that the scene was in a remote area, one would not
G normally expect to find another taxi, it would be difficult for D2 to keep G
the taxi and looked for the 3 UEs at the same time on his own. D1 gave
H H
evidence that during the journey he was sitting at the back with D2 in the
I taxi. D3 gave evidence that he was sitting in the front passenger seat. D2 I
gave evidence that he instructed the driver went to the Landfill with the
J J
assistance of a Nepalese over the phone.
K K
39. D2 gave evidence that his brother Nawaz UE1 went to China
L L
and planned to come into Hong Kong illegally but he was not involved in
M the arrangement. Nawaz used mobile phone of others to inform him his M
situation in China. He shared this with 2 to 3 friends as found in his
N N
WhatsApp record but he did not share it with D1 and D3. D1 and D3 did
O not know his brother Nawaz. O
P P
40. D2 also gave evidence that on 14 August 2016 around 7:00
Q am he received a call from an unknown Nepalese telling him to pick up his Q
brother in Tuen Mun. After they got on board the taxi, as he did not know
R R
the place, he called that Nepalese and passed over the phone to the driver
S to let that Nepalese guided the driver to the Landfill. If he did not know S
the place he should have called once he got inside the taxi and not during
T T
U U
V V
- 14 -
A A
B B
the trip, the fact that the call was made during the trip suggested that he
C was only not able to communicate the exact destination to the driver. C
D D
41. Upon arrival he saw his brother and the other 2 UEs came
E after his brother. His brother requested him to help and let the other two E
who had lent mobile phone to him go to their place and might be somebody
F F
who knows them might come and pick them up. Despite of the uncertainty
G of Nawaz’s statement and the risk involved, D2 acceded to his brother’s G
request.
H H
I 42. It was D2’s case that he was to pick up his brother only in the I
start, so whether a friend or some friend is important to his case. D2 gave
J J
evidence that he was mentioning a friend instead of some friends, D1 might
K have mistaken at that time. D1 disagreed when D2’s counsel put to him K
that D2 referred to a friend instead some friends and he was not mistaken
L L
on that. D3 gave evidence that D2 mentioned a friend at that time.
M M
43. Further it was D2’s case that he was only to pick up this
N N
brother that morning when he left with D1 and D3. If that was the case,
O why he would need two people to go with him just to pick up his brother O
at the guard post of the Landfill. If he was minded to seek assistance from
P P
D1 and D3 why he did not tell them the purpose directly, it was not a secret
Q as such as he has already shared with other friends. Q
R R
44. If D1 and D3 came along with the belief that they were to
S meet friend(s) of D2, where no introduction was made before the 3 men S
were arranged to leave by the taxi, would it arouse their suspicious? Why
T T
D1 would agree to convey those 3 friends of D2 to his home? D1 explained
U U
V V
- 15 -
A A
B B
he did not ask D2 to look after his friends because D2 did not know the
C way to his house by taking the taxi there. It was D1’s evidence that D2 C
came to his house for the party, D2 together with him and D3 left his home
D D
to take a taxi, and it was the DW’s evidence that all the defendants lived in
E the same area. I consider any suggestion that D2 did not know the way to E
D1’s home is not believable.
F F
G 45. The evidence of the defendants suggested that D2 was G
responsible for the cooking of the party due to be commenced at 11:00 am
H H
that morning and D2 was yet to purchase the meat for the cooking and the
I money for the purchase was with D2. Why would D1 and D3 agree instead I
of having D2 return first, he was left behind at a remote area where it was
J J
difficult to get another taxi and the mobile phone services connection was
K not go. When being asked how was he to arrange another taxi back, he K
said did not think of this matter at the time. I considered and find none of
L L
the defendants was an honest witness, I reject their respective evidence that
M D1 and D3 did not know the purpose to go to the Landfill and did not know M
the illegal status of the 3 UEs.
N N
O 46. According to Mr Leung’s evidence, all the three defendants O
worked together, on arrival D1 and D2 alighted and walked over to the
P P
guard post as if they were looking for something later turned out to be the
Q 3 UEs named in the charge, while D3 was there to keep the taxi waiting. I Q
considered the evidence as a whole and find the only irresistible inference
R R
is that D1 and D3 each had full knowledge that they were to pick up UEs
S together with D2 when they hired Mr. Leung’s taxi. S
T T
U U
V V
- 16 -
A A
B B
D2’s ROLE
C C
47. D2 gave evidence that he had previously turned down one of
D D
the two UEs request in converting Rupee to Hong Kong dollars because he
E did not want to get involved, this suggested he knew it was illegal to assist E
other’s illegal entry to Hong Kong. According to D2’s evidence, he had
F F
kept D1 and D3 in dark about the illegal entry of his brother Nawaz,
G however it was D2’s case that he had a conversation with brother Nawaz G
related to offer assistance to the other two UEs in the presence of D1. D3
H H
gave evidence all were standing and talking, though D1 said he did not
I know the content of their conversation. I
J J
48. According to D2’s evidence he must have learnt the illegal
K status of the other 2 UEs after he talked with his brother Nawaz. D2 told K
D1 to convey the 3 UEs to Nai Wai when he could have done it himself.
L L
Why would he discuss anything related to illegal entry in front of D1 when
M he was minded to keep this from him in the first place? What made him M
believed in such circumstances D1 would take the risk for him? Where he
N N
believed D1 did not hear the conversation, why should he put his friend at
O risk? O
P P
49. It was D2’s case that his original intention was to help his
Q brother only; it was not until he met his brother who requested D2 to assist Q
the other two UEs as they had been helping him by lending him their
R R
mobile phones. D2 did not expect other UEs to show up. First, according
S to D2’s case his brother did not have mobile phone, if the brother was not S
with others how they were supposed to communicate with each other upon
T T
the brother’s arrival at such remoted area. If the brother managed to reach
U U
V V
- 17 -
A A
B B
the guard post on his own or with assistance, D2 could have arranged via
C the call from the guard post to have his brother to wait for him there. In C
such case he could have get a taxi and picked up his brother, the only one
D D
he expected to meet, by himself alone.
E E
50. It was illegal for one to convey UEs. One would have no
F F
control whether someone would found the UEs suspicious and made a
G report to the police. Thus one would have his concern in engaging an G
innocent party e.g. a taxi driver to convey UEs. D2 gave evidence that had
H H
he known he was to convey 3 UEs, he would have taken two taxis as one
I taxi could not accommodate more than 4 people. I considered and reject I
D2’s evidence that he was only to pick up his brother, the fact that only
J J
one taxi was involved at the material time did not cast any doubt to the
K prosecution case. According to the defence case D2 and D3 were to take K
another taxi back anyway, thus it was not impossible for them to get back
L L
to Nai Wai at a later time.
M M
51. The fiat counsel Mr Polson suggested to D2 that he instructed
N N
D1 to convey the 3 UEs because he was the leader, he would reward D1
O with money, and he could be able to deny involvement should D1 be O
intercepted by Police on his way back to Nai Wai, D2 disagreed. I
P P
considered and find D2 was not an honest witness and rejected the evidence
Q that he was not the leader of the arrangement to pick up and convey the 3 Q
UEs to Nai Wai.
R R
S 52. D2 gave evidence that he did not know the landline in the S
guard post of the Landfill, it was from that landline that the Nepalese called
T T
him and said “I am a security guard at this post. Your brother Nawaz is
U U
V V
- 18 -
A A
B B
here. You should come and pick him up”. According to the phone record,
C the first call from the landline was at 7:46 am, and D2 called back the C
landline at 7:56 am and 7:59 am when he was inside the taxi.
D D
E D2’s WHATSAPP COMMUNICATION (EXHIBIT P69) E
F F
WhatsApp extracted from 97241486
G G
53. On 7 August 2016 at 11:05 pm D2 sent a contact number
H H
8613168339055 to Mubashir. D2 said Mubashir was his friend and he
I shared with him the arrangement of his brother Nawaz illegal entry to Hong I
Kong. D2 said the number was the contact number provided by his brother,
J J
he provided it to Mubashir for their direct contact.
K K
54. On 10 August 2016 at 10:48 am D2 sent a voice message to
L L
Mubashir “Friend, those people, that person of ship how much money is
M being asked inside ferry, the one with the Nawaz, give to that person?” M
Later at 10:53 am Mubashir replied “26” and D2 replied “Ok”. D2 gave
N N
evidence that these WhatsApp appeared because Mubashir asked him if he
O had any knowledge about the money pay, this simply was inconsistent to O
the message recorded.
P P
Q 55. Then at 10:53 am D2 send a voice message to Mubashir Q
“Then he said that I will tell my family one hundred fifty thousand you
R R
now, eight thousand has been given already and hundred fifty thousand
S giving now, then I took out and I said listen, the money has to be paid then S
only people will be allowed to board on the ship … need to pay money
T T
understand I don’t have enough money to (pay) for both of you.” D2 said
U U
V V
- 19 -
A A
B B
the money mentioned in the message was rupee, he was telling Mubashir
C that one of the 2 boys with his brother to come by ship wanted his family C
in Pakistan and him helped to convert the money to Hong Kong and sent it
D D
to him in China. Mubashir advised him that he should not get involved
E with the two boys. E
F F
56. It is noted that at 10:54 am Mubashir replied “There is no need
G friend, to agree, (then complaining headache) you tell him he should not G
talk to me, only talk to them. If one is to read the two messages together,
H H
it appeared that when D2 told Mubashir someone had problem in making
I payment before boarding the ship arranged for the illegal entry, Mubashir I
did not want to take up the matter himself and asked that person should not
J J
talk to him. Considering the messages between Mubashir and D2 as a
K whole, it is suggested that Mubashir and D2 are related to the syndicate K
that arranged the illegal entry of UEs into Hong Kong.
L L
M WhatsApp extracted from 95429826 M
N N
(a) 923128900982
O O
57. D2 said that was his brother Abubaker. On 10 August 2016
P P
at 6:31 pm “the brother” asked D2 “my friend send me my account
Q number”. Then at 6:31 pm D2 sent over a photo depicting the account Q
number of his brother Abubakar. When being asked why would you have
R R
his brother’s bank account number, D2 replied “Because he is my brother
S and he sent me a picture of it. If I need money, I ask him or if we have to S
send.” If D2 needed money, he might have to provide his account number
T T
to his brother, it would only be the case that he wanted to send money to
U U
V V
- 20 -
A A
B B
his brother that he needed his brother’s account number. D2 was not
C supposed to have any source of income in Hong Kong, why would he need C
his brother’s account number in Hong Kong?
D D
E 58. Later at 6:34 pm D2 asked “He has given 40 thousand rupees E
and left or not?” In the next 2 minutes the two confirmed the sum of 40,000
F F
already given and how much to be take out and give to home. D2 explained
G that a friend borrowed HK$3,000 from him in Hong Kong for emergency G
and remitted the equivalent Rupee to his family in Pakistan, namely his
H H
brother’s account. D2 obviously needed his brother’s account to receive
I the 40,000 rupees. I
J J
59. On the next day at 3:02pm “the brother” send three messages
K “It’s done”, “all money”, “any other work”. D2 replied by two messages K
“Thanks” “OK wait”. D2 said 923128900982 was his brother Abubakar’s
L L
phone number. Whoever was the holder of that number, that person was
M awaiting for D2’s instruction. D2 further gave evidence that later on he M
told his brother to send him back the money via his friend’s account and
N N
the brother messaged him that “I have sent that money” referring to the
O record at entry 47 and 48 happening on 13 August 2016 at 9:17 pm and O
9:18 pm.
P P
Q 60. In explaining the Whatsapp messages he sent out, D2 gave Q
evidence that time being he was also informing his brother Abubakar about
R R
brother Nawaz’s situation in China. On 13 August 2016 at 11:37 pm
S Abubakar called and asked “They left or not?”. And he replied at 11:49 S
pm that “They have left” because brother Nawaz would keep him informed
T T
by message or telephone call.
U U
V V
- 21 -
A A
B B
C 61. D2 gave evidence further that sometime after midnight on 14 C
August 2016 at 1:22 am brother Abubakar called and asked what was
D D
happening. And he replied at 1:28 am that “Don’t message, I will find out
E later myself when I’m free and let you know, alright. Now I am busy here”. E
However, D2 said he was not busy at anything, he was at home, it was just
F F
that Abubakar repeatedly messaging him he made such reply. If D2 did
G not want to receive any message he could have just switched off the phone, G
but he was busily communicating with others via his two mobile phones
H H
(Exhibit P80a item 5 &7) during that period of time.
I I
62. According to the record, D2 send another message at 1:28 am
J J
“Not known, if they are still on the way, not receiving the call, will inform
K when they arrive.” Then again at 4:27 am “They have arrived in Hong K
Kong but have not reached me yet, will contact later, wait for a while,
L L
understand?” Then again at 5:15 am “When they reach me, if I know
M anything, will let you know as well, alright, don’t message again and again, M
do sleep”. And then again at 7:36 am “I reply you later, reply you later,
N N
have not arrived yet”. The three UEs arrived at Nim Wan at 0317 hours,
O the aforesaid messages sent by D2 showed that by 4:27 am on 14 August O
2016 he had already learnt the arrival of them.
P P
Q (b) Ali Shah Q
R R
63. D2 said Ali Shah was his friend, he also told this friend that
S his brother Nawaz was coming to Hong Kong. The record showed that S
sometime before early hours of 13 August 2016 Ali Shah called D2. D2
T T
said Ali Shah called to ask about the progress of his brother’s arrangement
U U
V V
- 22 -
A A
B B
and the boys who were coming with his brothers. And he shared
C information obtained from his brother with Ali Shah and telling him a C
vehicle had been arranged. And Ali Shah sent him a message at 11:52 pm
D D
that “alright, no problem, after they sit in the ship, send me message, we
E are going to Tsuen Wan. If the other UEs were not D2’s concern why the E
discussion between D2 and Ali Shah would include the other UEs?
F F
G 64. Then after a missed call at 4:18 am on 13 August 2016, the G
next message from Ali Shah was at 4:18 am on the same day “Hello,
H H
greetings! Yes sir, what happened, have received any news or not, if (you
I still) awake send me message, otherwise good night, sweet dream … Bye”. I
J J
65. On 14 August 2016 at around 9:00 am D2 was arrested.
K Subsequent to that Ali Shah sent a message “Hello” to D2 at 10:42 am and K
followed by a missed call at 10:42 am.
L L
M (c) 85295315752 M
N N
66. D2 said this was his friend “Cookie Shark”. D2 explained that
O his friend was enquiring his brother Nawaz’s situation in China. However, O
it was clear that the message from “Cookie Shark” on 12 August at 11:19
P P
pm was about “to avoid problem for them being staying outside, they have
Q not paid hotel charges yet and that person also have not reached to them Q
yet …” It was not just about D2’s brother Nawaz. Further why would that
R R
“Cookie Shark” so concerned the well-being of all.
S S
67. D2 replied at 11:28 pm that “they will definitely pick up today,
T T
I am in touch with them, they don’t call to avoid from having their number
U U
V V
- 23 -
A A
B B
traced, alright, your brothers … as soon as the situation gets well, they will
C pick, alright, there are policemen going around, that is why they are not C
taking risk, alright, the person is present there down their building.”
D D
E 68. In explaining the Whatsapp messages with “Cookie Shark”, E
D2 gave evidence that because the situation in China was not good “Cookie
F F
Shark” was enquiring about his brother, enquiring if they had left the hotel
G or not, because if they had, they might have to spend the night outside. G
And “Cookie Shark” also wanted him to ask his brother about the payment
H H
of the hotel charges. His reply at 11:28 pm was referring to his contact
I with his brother and about the people who were to pick his brother in China. I
He was informing “Cookie Shark” his brother Nawaz’s situation.
J J
K 69. At entry 6, on 13 August at 1:59 am “Cookie Shark” said K
“Brother today also the work is not done, is there any chance or not? In
L L
Shenzhen is very dangerous place nowadays”. D2 tried to pacify and
M replied at 2:27 am that he had sent the money this morning. They were in M
the hotel and it was not dangerous. Police was patrolling outside and no
N N
raids were being carried out inside the hotels. If D2’s brother Nawaz was
O the only concern and the others were unrelated why would “Cookie Shark” O
sounded so worry and D2 needed to refer to situation of “they”?
P P
Q 70. D2 gave evidence that the money mentioned here was cash in Q
a sum of $1,000 he arranged to bring over to Shenzhen by a friend. As his
R R
brother Nawaz kept him informed there was police patrolling outside the
S hotel so he shared it with “Cookie Shark”. S
T T
U U
V V
- 24 -
A A
B B
71. At entry 10, on 14 August 2016 at 7:22 am, “Cookie Shark”
C called again and asked what happen. At 7:29 am D2 replied “they have C
arrived in Hong Kong, they are in the ship, after the duty is changed then
D D
they take them out”. The friend requested at 7:30 am “Ok when they
E arrived to you, then must send me the sms”. D2 replied “OK” at 7:33 am. E
F F
72. D2 initially gave evidence that he received a call between 7:00
G am and 7:30 am, therefore he informed “cookie Shark” his brother was here G
in Hong Kong at 7:29 am after he made enquiry at 7:22 am. He was at
H H
D1’s residence when he replied “Cookie Shark’s” enquiry. Again if D2’s
I brother was the only concern, why would their conversation mentioning I
“they arrived to D2”? Further it is noted that the alleged “first call” from
J J
a Nepalese in D2’s subsequent evidence, informing him the arrival of his
K brother Nawaz happened at 7:46 am on 14 August 2016. K
L L
(d) Lala
M M
73. D2 said he shared the matter of his brother Nawaz with his
N N
friend Lala. At entry 3 on 14 August 2016 at 12:23 am Lala asked “any
O possibility for them to arrive yet or not?” At 12:24 am D2 replied “…they O
have left the hotel alright, they are going by taxi to that place, with the will
P P
of God, with the will of God, today will be done.” And “Will tell you later”.
Q Q
74. D2 was arrested around 9:00 am on 14 August 2016. At entry
R R
10, later at12:00 pm, Lala called and asked “have the boys arrived yet, what
S happened”. Again if D2’s brother was the only concern, why would their S
conversation mentioning “they” and “boys”.
T T
U U
V V
- 25 -
A A
B B
C 75. D2 explained Lala was asking about his brother but as Lala C
knew his brother was contacting him through other people’s phone, Lala
D D
could have thought that might be others were also coming therefore Lala
E referred to them when he asked about his brother. And further explained E
that out of respect, they would use “they” when referring to an elder person.
F F
I considered and find his explanations unconvincing.
G G
(e) Home
H H
I 76. D2 said he was having conversation with family in Pakistan. I
At entries 15 to 18, on 14 August 2016 within the minute of 3:27 am, Home
J J
asked D2 what happened and D2 replied “still on the way, when I get to
K know, will call myself, alright?” Time being an object was detected K
moving toward Hong Kong water from She Kou Harbour, reaching Nim
L L
Wan and then passed out of Hong Kong water. Apparently D2 knew his
M brother Nawaz and the other UEs had already left Shenzhen to Hong Kong. M
N N
77. D2, however, in clarifying the calls with a Nepalese, gave
O evidence that he was not sure if his brother Nawaz would arrive on 14 O
August 2016, before he received the call from the Nepalese security guard,
P P
he had no idea where and when his brother would call him. He last received
Q his brother’s call between 5 pm and 7 pm on 13 August 2016, after that he Q
called his brother but his brother did not receive the call. If D2 was not
R R
informed by his brother, he must be informed by others as to the arrival of
S the UEs on 14 August 2016. S
T T
U U
V V
- 26 -
A A
B B
78. Further the Whatsapp messages sent out by D2 to various
C people in the early hours on 14 August 2016 showed that he had already C
learnt by 12:24 am that the UEs had left the hotel for their voyage to cross
D D
the border and by 4:27 am the arrival of UEs to Hong Kong and he would
E be informed when they were taken to a pick up point, and at around 7:30 E
am he was still waiting for the call to pick up the UEs. I considered the
F F
evidence as a whole and find the only irresistible inference is that at all the
G material times D2 was not just concerned his brother Nawaz but also the G
other UEs travelling with Nawaz.
H H
I 79. I considered and reject D2’s explanation that the WhatsApp I
extracted was only about his sharing of the illegal entry of his brother only,
J J
and rejected his explanation about the money mentioned in the WhatsApp.
K The abovementioned conversations as a whole suggested that D2 was K
expecting the UEs to arrive Hong Kong in the morning of 14 August 2016.
L L
Apart from the WhatsApp extracted by the services provider, the police
M also managed to extract call logs from some of the mobiles phones seized. M
N N
CALLS BETWEEN THE DEFENDANTS
O O
80. From the call log record extracted from D1 (64626640)
P P
(Exhibit P80a item 15) and D2 (97241486) (Exhibit P80a item 5), D1 and
Q D2 had 2 calls on 13 August 2016 at 19:18 hours and 19:19 hours; D1 and Q
D2 had or attempted to have all together 8 WhatsApp on 14 August 2016
R R
between 1:05:59 hours and 6:05:42 hours. While D2 attempted to make
S one WhatsApp to D3 on 14 August 2016 at 1:08:54 hours. S
T T
U U
V V
- 27 -
A A
B B
81. As per D1’s log record between 1 August 2016 and 13 August
C 2016 there were all together 58 call records between D1 and D2 including C
missed call while there were 2 calls with D3 on 6 August 2016 and 3 calls
D D
on 11 August 2016.
E E
82. As per D2’s log record of (95429826) (Exhibit P80a item 7)
F F
D2 had 2 WhatsApp record with D3 and 1 WhatsApp record with
G D1respectively on 13 August 2016. Between 3 August 2016 and 7 August G
2016 D2 had 25 WhatsApp records with D3, 16 of which was on 5 August
H H
2016; closely before and after that 16 WhatsApp D2 and D1 had 11
I WhatsApp records. D1 gave evidence he would call D2 once or twice a I
day and because they had decided to have a party a week ago, he would
J J
have called D2 about the party since then.
K K
83. As per UE3’s log record (923455471069) (Exhibit P80a item
L L
9) between 1 August 2016 and 11 August 2016 he and D3 had 45
M call/WhatsApp records. Further 13 WhatsApp records was found on 13 M
August 2016 between D2 and UE3’s number, these were between 21:10:55
N N
hours and 23:26:22 hours on 13 August. That was about 3 hours before
O the UEs boarded the vessel to Hong Kong. O
P P
84. UE2’s mobile phone calling record shown that he had called
Q the D2 at 7:38 am on 14 August 2016, and that was a missed call. Q
Thereafter someone using the Landline of the guard post to communicate
R R
with D2 at 7:46 am, 7:56 am and 7:59 am before the defendants were
S intercepted around 8:30 am. S
T T
U U
V V
- 28 -
A A
B B
85. Further as per D2’s call log record, on 14 August 2016
C between 00:00 hours and 08:30 hours there were 78 records in 95429826 C
and 10 records in 97241486 of which 8 related to D1 and 1 concerned D3
D D
as mentioned above. Taking into account of the volume of the
E call/WhatsApp between 1 August and 14 August 2016 and the time of the E
call/WhatsApp that were made, I considered and reject any suggestion that
F F
the calls between the defendants were only calls among friends and
G unrelated to assisting illegal entry to Hong Kong. G
H 86. I considered the evidence as a whole and find the only H
irresistible inference is that D2 was the one in contact with those arranged
I I
the UEs to sneak into Hong Kong by sea. D2 was the one who gave
J J
instructions to D1 and D3 and the two acted as instructed.
K K
CONCLUSION
L L
M 87. D2 gave evidence and provided proof his relationship with M
UE1, there was no contrary evidence to that. I considered and accept their
N N
relationship. However, that one of the UEs was D2’s brother did not cast
O any doubt on the prosecution case that D2 was a leader of the arrangement. O
P P
88. The Pakistan National Day Party was used as a pretext to
Q explain why the three defendants were together in that early morning on 14 Q
August 2016. There was no evidence whether the party was called off or
R R
continued as scheduled without the defendants. However, I do not consider
S the respective defence case, the existence of the party alleged, if so, would S
cast any doubt on the prosecution case.
T T
U U
V V
- 29 -
A A
B B
89. I considered and find the prosecution has proved beyond all
C reasonable doubt that at the time the three defendants got on board the taxi, C
they intended that to be a round trip, to collect the 3 UEs at the Landfill
D D
and come back. The purpose to go there in fairly early hour on a Sunday
E morning was to assist someone remaining in Hong Kong illegally. E
F 90. I considered and find the prosecution has proved beyond all F
reasonable doubt that D2 was playing a leading role in that group of three,
G G
he was a knowing, willing, and active party to the joint enterprise that assist
H the 3 UEs on the morning of the 14 August 2016. H
I I
91. I considered and find the prosecution has proved beyond all
J J
reasonable doubt that the role of D1 was to convey and ensured that the 3
K
UEs were taken to his home. D1 was a party to the joint enterprise to assist K
the 3 UNs’ passage within Hong Kong. D1 was a knowing, willing, and
L L
active party to the joint enterprise that assist the 3 UEs on the morning of
M the 14 August 2016. D1 is convicted accordingly. M
N N
92. I considered and find the prosecution has proved beyond all
O reasonable doubt that the role of D3 was to hold on to the taxi while the O
other two looked for the UEs nearby. Once the UEs were located, he got
P P
out of the taxi and let D1 and the 3 UEs get in and left by taxi. D3 was a
Q knowing and willing party to the joint enterprise that assist the 3 UEs on Q
the morning of 14 August 2016. D3 is convicted accordingly.
R R
S 93. I considered and find this illegal operation was carried by a S
syndicate to arrange and assist the passage of UEs to Hong Kong, to receive
T T
the UEs upon their arrival in Hong Kong and then assisted their onwards
U U
V V
- 30 -
A A
B B
movement within Hong Kong. It was a commercial transaction to the
C benefit of those involved. The operation was an organized crime involved C
substantial planning and organization.
D D
E E
F F
G G
( A Yim )
H Deputy District Judge H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
DCCC1084/2016 HKSAR v. KHALID MANSOOR AND OTHERS - LawHero
A A
B
DCCC 1084/2016 B
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 1084 OF 2016 E
F F
------------------------------------
G HKSAR G
v
H H
KHALID MANSOOR (D1)
I SARFRAZ (D2) I
JAWAD HUSSAIN (D3)
J J
------------------------------------
K K
Before: Deputy District Judge A Yim in Court
L L
Date: 30 October 2017
M Present: Mr Ian Polson, Counsel on Fiat, for HKSAR M
Mr Richard David Donald, instructed by LCP, assigned by the
N N
st
Director of Legal Aid, for the 1 defendant
O O
Mr James H M McGowan, instructed by Oliver C M Chan &
P
Co, assigned by the Director of Legal Aid, for the 2nd
P
defendant
Q Q
Mr Cheung Yiu Leung, instructed by Kevin Ng & Co,
R
assigned by the Director of Legal Aid, for the 3rd defendant R
Offences: Assisting the passage within Hong Kong of unauthorized
S S
entrants（協助未獲授權進境者在香港境內的旅程）
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR VERDICT C
--------------------------------------
D D
E 1. The defendants were jointly charged for one count of assisting E
the passage within Hong Kong of unauthorized entrants, contrary to section
F F
37D(1)(a) of the Immigration Ordinance, Cap. 115.
G G
2. D1 and D3 pleaded not guilty while D2 pleaded guilty but
H H
disputed the facts that he was the central organizer of the offence.
I Conviction of D2 was entered upon his plea and admission of the facts that I
supported the charge, as the fact in dispute had a potentially significant
J J
effect on the level of sentence, a Newton hearing was directed. Further
K because the evidence concerned was inter-related to the case against the K
co-defendants, the Newton hearing was directed to be heard together with
L L
the trial of D1 and D3. Parties raised no objection that the Newton hearing
M be heard together with the trial at the same time. M
N N
3. In December 2016, the Prosecution has served notice to the
O defendants pursuant to section 27 of the Organized and Serious Crimes O
Ordinance, Cap. 455, for enhancement of sentence, on the ground that the
P P
offence was an organized crime. In particular, the two or more acts
Q committed being: assisting the passage to Hong Kong of unauthorized Q
entrants and assisting the passage within Hong Kong of unauthorized
R R
entrants.
S S
T T
U U
V V
-3-
A A
B B
THE PROSECUTION CASE
C C
4. On 14 August 2016 at around 3 am, an object carried a number
D D
of unauthorized entrants (UEs) entered the Hong Kong Waters and the UEs
E on board, including the three UEs mentioned in the charge, landed at Nim E
Wan.
F F
G 5. At about 7:55 am the three defendants hailed a taxi at Nai Wai, G
Tuen Mun and went to Nim Wan Landfill to pick up the three UNs at about
H H
8:22 am, with a view to convey the three UEs to Nai Wai. The three
I defendants and the three UEs were apprehended by police before the taxi I
pull away. The mobile phones of the defendants and the UEs were seized.
J J
K 6. The telephone and WhatsApp records of D2 showed that he K
was one of the prime “organizer” of a syndicate to receive UEs upon their
L L
arrival in Hong Kong by sea and then assist their onwards movement
M within Hong Kong. This was a commercial transaction to the benefit of M
D2 and others. All the defendants were parties to this illegal enterprise.
N N
O THE DEFENCE CASE O
P P
7. 14 August 2016 was the Pakistan National Day. D1 and D3
Q together with other friends had organized a party to celebrate their National Q
Day that morning. D2 was the chef of the event. Soon after they started
R R
the preparation for the food, D2 received a call and asked D1 and D3 to go
S out with him to meet friend(s). The three of them took a taxi heading to S
the Landfill.
T T
U U
V V
-4-
A A
B B
8. On arrival D2 got off for his friend(s), D1 followed D2 to
C check him up. D1 and D3 had no knowledge of the illegal status of the 3 C
UEs. D2 did not expect other UEs to show up, as he all along only intended
D D
to pick up his brother. It was only at that time that his brother requested
E D2 to help the other two. E
F F
9. As the taxi could only take up 4 passengers, D2 asked D1 to
G convey the three UEs in question to his home first and he would return with G
D3 by another taxi.
H H
I MATTERS IN DISPUTE I
J J
10. The three defendants were holders of Form 8 Recognizance
K and at all material times they were of clear record. On 14 August 2016, K
shortly before 8:00 am they hailed the taxi SV1879 to go to the Landfill
L L
and was arrested at around 9:00 am at the entrance of the Landfill.
M M
11. Before the interception, the taxi driver had been told to go
N N
back to the point where he collected the three defendants. At time of the
O interception, D1 was sitting on the front passenger seat, the three UEs were O
sitting at the back while D2 and D3 was outside the taxi. Were D1 and D3
P P
together with D2 and others unknown assisted the three UEs to go to Nai
Q Wai by taxi? Q
R R
12. D2 had pleaded guilty but denied he was the leader or
S mastermind of the offence. Was D2 a prime organizer of this illegal S
enterprise?
T T
U U
V V
-5-
A A
B B
FINDINGS
C C
13. It is for the prosecution to prove his case against D2 beyond
D D
all reasonable doubt and also D1 and D3’s guilt on each and every element
E of the charge beyond all reasonable doubt. The defendants have no burden E
of proof whatsoever.
F F
G 14. The defendants had a clear record, it is less likely that they G
would commit a crime and more likely that they were telling the truth
H H
during the cautioned interview and in their evidence. Admission, if any,
I made during the cautioned interview would only be evidence against the I
maker only.
J J
K 15. All the evidence should be considered as a whole in the light K
of the defence case and the defence submission. The case of each
L L
defendant should be considered separately. Where there is any reasonable
M doubt, the benefit should go to the defendants. M
N N
16. Mr Cheung for D3 referred me to HKSAR v Ivan Chan Man
O Sum CACC 273/2015 a case in which the Court of Appeal has once again O
reiterated the importance of the direction that no adverse inference is to be
P P
drawn unless it is “the only reasonable inference” (para 57).
Q Q
R R
S S
T T
BACKGROUND
U U
V V
-6-
A A
B B
C 17. At 0249 hours on 14 August 2016, the Marine Police Digital C
Radar Surveillance System (DRSS) showed a suspicious object at 0.1
D D
NMSVV She Kou Harbour moving toward Hong Kong Waters at 5 knots.
E E
18. At 0254 hours the said object reached Hong Kong Waters and
F F
moved towards Nim Wan, New Territories. At 0317 hours the object was
G off shore at Nim Wan and at 0322 hours it left Nim Wan and passed out of G
Hong Kong Waters at 0342 hours.
H H
I 19. At 0317 hours the 3 unauthorized entrants specified in the I
charge, namely NAWAZ Muhammad (UE1), AHMED Zulfiqar (UE2) and
J J
ABBAS Qosain (UE3) arrived at Nim Wan. All of them held Pakistani
K passports with no record of entering Hong Kong through a valid K
Immigration entry point.
L L
M 20. At 0715 hours a group of 3 South Asian was seen walking M
along the Nim Wan Road following another group of South Asian at 6-7.
N N
They were carrying rucksack heading to Tuen Mum Town Center away
O from the Landfill. The presence of these people aroused the suspicion of O
Mr Go PW1 who was driving along Nim Wan Road near the Landfill with
P P
his colleagues on board and he made a report to the police after he dropped
Q his colleagues at the Landfill. Q
R R
21. Shortly before 0800 hours at Nai Wai bus stop Tuen Mun, D1-
S D3 hired and boarded the taxi SV1879 driven by Mr Leung PW2. One of S
the defendant took the front passenger seat while the other two sat at the
T T
back. Mr Leung was instructed to go to Nim Wan. During the journey,
U U
V V
-7-
A A
B B
Mr Leung was handed over a mobile phone and he was instructed over the
C phone to go to Nim Wan Landfill. Later the taxi arrived and stopped near C
the entrance of the Landfill. Near the guard post at the entrance of the
D D
Landfill, 3 UEs were seen climbed up from a ditch nearby.
E E
22. Around 0825 hours the police arrived the entrance of the
F F
Landfill where the three defendants were found together with the 3 UEs.
G At around 0900 hours the defendants were arrested. At time of the arrest, G
all three defendants were in possession of mobile telephones (number in
H H
bracket), D1 (64626640) and D3 (97330516) each had a mobile phone
I while D2 (97241486; 95429826) had 2 mobile phones. Whereas UE2 and I
UE3 each were in possession of a mobile telephone.
J J
K 23. Subsequently the police conducted a sweeping operation in K
the Nim Wan area and further arrested 4 Nepalese and 2 Pakistani.
L L
M 24. The phones of the defendants and the UEs were examined by M
the Police Digital Forensics Team, only the call log but not the content of
N N
the WhatsApp communication could be extracted (Referred to Exhibit 69
O & Exhibit P80a for the relevant log record). Police further requested O
assistance from the mobile phone services provider, certain WhatsApp
P P
communication of D2’s phone was extracted (Exhibit P69).
Q Q
THE INCIDENT AT THE LANDFILL
R R
S 25. Mr Leung gave evidence that during the taxi journey he was S
handed over a phone from the back, and instructed to go to the landfill at
T T
Lun Ko Tan (“Landfill”). He drove as instructed and on arrival outside the
U U
V V
-8-
A A
B B
entrance gate of the Landfill, he stopped and parked the taxi at the entrance
C by the pavement. The two at the back alighted and walked to the guard C
post. The two acted as if they were looking for something over there, they
D D
gave him an impression that they were looking for their friend(s). The
E front passenger remained inside his taxi and used hand gesture to ask him E
to drive over to the direction of the other two near the guard post.
F F
G 26. Mr Leung further gave evidence that upon getting close, he G
saw the two passengers climbed up from a ditch then several people
H H
following them. Including the two passengers, there were about 5 people
I outside his taxi. Once his taxi stopped by the guard post, the front I
passenger alighted. The two passengers did not return, people stayed
J J
outside talking. Later several of those outside got into his taxi. He raised
K 4 fingers to remind them his was a four-seat taxi. After his taxi was fully K
loaded, one of the people outside told him go back to Nam Wai, he
L L
understood that meant to be returning to where he collected them. There
M was no staff at the guard post. M
N N
27. All the defendants gave evidence that D1 got out from the taxi
O one minute after D2. Mr Leung was being cross-examined as to whether O
the two rear passengers alighted at different stages and whether they
P P
walked together. Although Mr Leung’s concern was to ensure someone
Q remained behind to look after the unpaid taxi fare, he was sure he saw the Q
two at the back alighted at the same time on either side of the taxi and went
R R
up to the guard post and when he moved closer to the guard post he saw
S the two climbed up from the ditch. There was, however, no mention of any S
climbing up from the ditch by the defendants. I considered and accept Mr
T T
U U
V V
-9-
A A
B B
Leung’s evidence. I considered and reject the defendants’ evidence that
C D1 only went up to D2 after one minute. C
D D
28. It was not disputed that when Mr Leung was about to pull
E away, a private car UD6935 with plain clothes police officers on board E
came and blocked his way. Soon another police vehicle came to the scene.
F F
Police officers ran out from their vehicles and proceeded to intercept and
G enquiry with the 6 South Asian males. Upon police request Mr Leung G
printed out the receipt of the abovementioned journey (Exhibit P48), which
H H
showed the journey started at 0757 hours and the receipt printed out at 0832
I hours. No one attempted to pay the taxi fare yet. To his knowledge the I
journey was to end upon his return to Nai Wai bus stop.
J J
K A JOINT ENTERPRISE? K
L L
29. The three defendants and the three UEs were seen talking at
M the scene in their own language. During the videoed interview, all the M
defendants gave a similar explanation for their presence at the scene. They
N N
boarded the taxi at Nai Wai, went over to the place of arrest to meet a friend
O and D1 was paying the taxi fare when the three UEs boarded the taxi. They O
did not know the three UEs. D2 explained he did not tell the police he was
P P
there to pick up his brother because he was scared as he had never
Q committed any crime before. Q
R R
30. All of the defendants, however, gave evidence that they
S intended to take the same taxi back to Nai Wai, and no payment was S
tendered before their arrest. When the D1 and D2 were shown their
T T
respective answer about “D1 was paying the taxi fare”, they invariably
U U
V V
- 10 -
A A
B B
replied they did not remember what they have said at that time. The fiat
C counsel did not put similar question to D3 again. It could not be mere C
coincidence that the 3 defendants gave the same false account of the event
D D
in their respective interview, I consider they had concocted together in
E order to distance themselves from the 3 UEs found with them at the scene. E
According to D1 and D3 they did not know the illegal status of the 3 UEs,
F F
D2’s brother was only introduced to them at the police station in the case
G of D3 and at Lai Chi Kwok in the case of D1. Why would D1 and D3 want G
to concoct together with D2?
H H
I 31. 14 August 2016 was the Pakistan National Day. Mr I
Muhammad Adnan, the second defence witness (hereinafter referred as
J J
DW) gave evidence that he knew D1 to D3 over two years, D1 to D3 lived
K in Nai Wai, they lived in the same area. On 14 August 2016 he went to a K
friend’s home at Nai Wai to celebrate together with another 10 to 12 friends.
L L
Upon arrival around 6:30 am to 7:00 am D1 to D3 were already there. DW
M further gave evidence that at one stage D2 received a call, and after that he M
said to D1 and D3 “Let’s go with me, we meet some friends and then we
N N
come back”. D1 and D3 then left with D2.
O O
32. DW initially said the party was organized by all the friends
P P
together. When being asked in whose home was the party being held, DW
Q said he did not know whose home was that and went on to say D1, D2 and Q
D3 were living in the same area and in further clarifying he did not know
R R
whose home was that, he said he was only invited to the party by a friend.
S D1 gave similar evidence as his DW, except that he said the party was held S
at his home and to be commenced at 11:00 am, if so, he would be the de
T T
facto host of the party. DW has known the defendants over 2 years, it was
U U
V V
- 11 -
A A
B B
strange that DW did not know that he was at D1’s home. DW was not
C asked what happened to the party without the defendants. C
D D
33. D1 also gave evidence that they started to arrange for the party
E at around 6:30 am when D2 came to his house. Between 7:00 am and 7:30 E
am D2 went out to receive a call, upon return D2 asked him and D3 to go
F F
with him to meet some friends in Tuen Mum, he did not know why he was
G requested to go along. Nothing more was mentioned during the taxi G
journey why it was necessary for him and D3 to accompany D2 to meet his
H H
friend, nor did he ask. If that was the case, why would D1 leave the party
I without finding out more why he was required to go with D2; and why he I
did not make any enquiry when it appeared to him that D2 was not able to
J J
tell the destination and needed to hand over his phone to the driver with the
K taxi was moving further and further away from Tuen Mum to a remote area? K
L L
34. D1 gave evidence that upon arrival the destination, D2 got out
M and said he would come back after he meet friends. About one minute later M
after D2 left, he got off the taxi and went after D2 intending to ask him to
N N
come back quickly, as there were other friends at home and D2 also had to
O do the cooking. He went up and saw D2 with his friends, D2 was talking O
with his friends, in particular D2 was talking to one of the friends later he
P P
found out that person to be Nawaz Muhammed, but he did not hear the
Q conversation suggested by D2’s counsel. He did not know if D2 knew the Q
other two or not. D2 indicated to the taxi driver and the taxi driver came
R R
over. He did not know where D2’s friend came from, he just shook hands
S and greeted with them. D2 asked him to take the 3 men back with him in S
the taxi, and D2 and D3 would come back in another taxi. He did not know
T T
U U
V V
- 12 -
A A
B B
the illegal status of D2’s friends, he thought they were arrested because D2
C and D3 did not have their document with them. C
D D
35. D3 gave evidence that D2 asked him to go together at Tuen
E Mum to meet a friend, he did not know whom he was expected to meet, E
yet he did not ask. During the taxi journey, nothing was mentioned about
F F
the friend whom they were to meet, he did not know why he was asked to
G go together and he and D1 did not ask. On arrival D2 got out first then D1 G
followed. D3 agreed with D2’s counsel that D1 got out from the taxi a
H H
minute or so afterward, however this was contrary to what Mr Leung
I observed. I considered and reject any evidence that D1 and D2 were not I
alighting the taxi approximately at the same time.
J J
K 36. D3 gave evidence that from a distance he saw D1 and D2 were K
standing and talking with some other people. He did not know those other
L L
people, he did not know from where they came from and why they were
M there. He followed D1’s indication to ask the taxi driver moved over to M
them. After the taxi moved and stopped by them, he got out of it to greet
N N
D2’s friends. Then the 3 men got into the back of the taxi and D1 got into
O the front. He only learnt about the status of those people upon arrested by O
the Police.
P P
Q 37. According to the defence case, the party celebrating the Q
National Day was held at D1’s home, D3 was one of the organizer while
R R
D2 was the chef, they have collected $4,000 from the friends and they were
S yet to complete the preparation of the party food. They took the party as S
an important event and started to do preparation early in the morning. D1
T T
and D3 gave evidence respectively that in the course of the preparation
U U
V V
- 13 -
A A
B B
they were only told by D2 to meet friend(s) at Tuen Mum, they were not
C told why they were required to go and the identity of the friend(s). Both C
D1 and D3 said they did not know, they did not ask for the reason and they
D D
just went with D2. They may not be provided with an answer but I find it
E unbelievable that they did not even ask in the circumstances they alleged. E
F F
38. It is noted that the scene was in a remote area, one would not
G normally expect to find another taxi, it would be difficult for D2 to keep G
the taxi and looked for the 3 UEs at the same time on his own. D1 gave
H H
evidence that during the journey he was sitting at the back with D2 in the
I taxi. D3 gave evidence that he was sitting in the front passenger seat. D2 I
gave evidence that he instructed the driver went to the Landfill with the
J J
assistance of a Nepalese over the phone.
K K
39. D2 gave evidence that his brother Nawaz UE1 went to China
L L
and planned to come into Hong Kong illegally but he was not involved in
M the arrangement. Nawaz used mobile phone of others to inform him his M
situation in China. He shared this with 2 to 3 friends as found in his
N N
WhatsApp record but he did not share it with D1 and D3. D1 and D3 did
O not know his brother Nawaz. O
P P
40. D2 also gave evidence that on 14 August 2016 around 7:00
Q am he received a call from an unknown Nepalese telling him to pick up his Q
brother in Tuen Mun. After they got on board the taxi, as he did not know
R R
the place, he called that Nepalese and passed over the phone to the driver
S to let that Nepalese guided the driver to the Landfill. If he did not know S
the place he should have called once he got inside the taxi and not during
T T
U U
V V
- 14 -
A A
B B
the trip, the fact that the call was made during the trip suggested that he
C was only not able to communicate the exact destination to the driver. C
D D
41. Upon arrival he saw his brother and the other 2 UEs came
E after his brother. His brother requested him to help and let the other two E
who had lent mobile phone to him go to their place and might be somebody
F F
who knows them might come and pick them up. Despite of the uncertainty
G of Nawaz’s statement and the risk involved, D2 acceded to his brother’s G
request.
H H
I 42. It was D2’s case that he was to pick up his brother only in the I
start, so whether a friend or some friend is important to his case. D2 gave
J J
evidence that he was mentioning a friend instead of some friends, D1 might
K have mistaken at that time. D1 disagreed when D2’s counsel put to him K
that D2 referred to a friend instead some friends and he was not mistaken
L L
on that. D3 gave evidence that D2 mentioned a friend at that time.
M M
43. Further it was D2’s case that he was only to pick up this
N N
brother that morning when he left with D1 and D3. If that was the case,
O why he would need two people to go with him just to pick up his brother O
at the guard post of the Landfill. If he was minded to seek assistance from
P P
D1 and D3 why he did not tell them the purpose directly, it was not a secret
Q as such as he has already shared with other friends. Q
R R
44. If D1 and D3 came along with the belief that they were to
S meet friend(s) of D2, where no introduction was made before the 3 men S
were arranged to leave by the taxi, would it arouse their suspicious? Why
T T
D1 would agree to convey those 3 friends of D2 to his home? D1 explained
U U
V V
- 15 -
A A
B B
he did not ask D2 to look after his friends because D2 did not know the
C way to his house by taking the taxi there. It was D1’s evidence that D2 C
came to his house for the party, D2 together with him and D3 left his home
D D
to take a taxi, and it was the DW’s evidence that all the defendants lived in
E the same area. I consider any suggestion that D2 did not know the way to E
D1’s home is not believable.
F F
G 45. The evidence of the defendants suggested that D2 was G
responsible for the cooking of the party due to be commenced at 11:00 am
H H
that morning and D2 was yet to purchase the meat for the cooking and the
I money for the purchase was with D2. Why would D1 and D3 agree instead I
of having D2 return first, he was left behind at a remote area where it was
J J
difficult to get another taxi and the mobile phone services connection was
K not go. When being asked how was he to arrange another taxi back, he K
said did not think of this matter at the time. I considered and find none of
L L
the defendants was an honest witness, I reject their respective evidence that
M D1 and D3 did not know the purpose to go to the Landfill and did not know M
the illegal status of the 3 UEs.
N N
O 46. According to Mr Leung’s evidence, all the three defendants O
worked together, on arrival D1 and D2 alighted and walked over to the
P P
guard post as if they were looking for something later turned out to be the
Q 3 UEs named in the charge, while D3 was there to keep the taxi waiting. I Q
considered the evidence as a whole and find the only irresistible inference
R R
is that D1 and D3 each had full knowledge that they were to pick up UEs
S together with D2 when they hired Mr. Leung’s taxi. S
T T
U U
V V
- 16 -
A A
B B
D2’s ROLE
C C
47. D2 gave evidence that he had previously turned down one of
D D
the two UEs request in converting Rupee to Hong Kong dollars because he
E did not want to get involved, this suggested he knew it was illegal to assist E
other’s illegal entry to Hong Kong. According to D2’s evidence, he had
F F
kept D1 and D3 in dark about the illegal entry of his brother Nawaz,
G however it was D2’s case that he had a conversation with brother Nawaz G
related to offer assistance to the other two UEs in the presence of D1. D3
H H
gave evidence all were standing and talking, though D1 said he did not
I know the content of their conversation. I
J J
48. According to D2’s evidence he must have learnt the illegal
K status of the other 2 UEs after he talked with his brother Nawaz. D2 told K
D1 to convey the 3 UEs to Nai Wai when he could have done it himself.
L L
Why would he discuss anything related to illegal entry in front of D1 when
M he was minded to keep this from him in the first place? What made him M
believed in such circumstances D1 would take the risk for him? Where he
N N
believed D1 did not hear the conversation, why should he put his friend at
O risk? O
P P
49. It was D2’s case that his original intention was to help his
Q brother only; it was not until he met his brother who requested D2 to assist Q
the other two UEs as they had been helping him by lending him their
R R
mobile phones. D2 did not expect other UEs to show up. First, according
S to D2’s case his brother did not have mobile phone, if the brother was not S
with others how they were supposed to communicate with each other upon
T T
the brother’s arrival at such remoted area. If the brother managed to reach
U U
V V
- 17 -
A A
B B
the guard post on his own or with assistance, D2 could have arranged via
C the call from the guard post to have his brother to wait for him there. In C
such case he could have get a taxi and picked up his brother, the only one
D D
he expected to meet, by himself alone.
E E
50. It was illegal for one to convey UEs. One would have no
F F
control whether someone would found the UEs suspicious and made a
G report to the police. Thus one would have his concern in engaging an G
innocent party e.g. a taxi driver to convey UEs. D2 gave evidence that had
H H
he known he was to convey 3 UEs, he would have taken two taxis as one
I taxi could not accommodate more than 4 people. I considered and reject I
D2’s evidence that he was only to pick up his brother, the fact that only
J J
one taxi was involved at the material time did not cast any doubt to the
K prosecution case. According to the defence case D2 and D3 were to take K
another taxi back anyway, thus it was not impossible for them to get back
L L
to Nai Wai at a later time.
M M
51. The fiat counsel Mr Polson suggested to D2 that he instructed
N N
D1 to convey the 3 UEs because he was the leader, he would reward D1
O with money, and he could be able to deny involvement should D1 be O
intercepted by Police on his way back to Nai Wai, D2 disagreed. I
P P
considered and find D2 was not an honest witness and rejected the evidence
Q that he was not the leader of the arrangement to pick up and convey the 3 Q
UEs to Nai Wai.
R R
S 52. D2 gave evidence that he did not know the landline in the S
guard post of the Landfill, it was from that landline that the Nepalese called
T T
him and said “I am a security guard at this post. Your brother Nawaz is
U U
V V
- 18 -
A A
B B
here. You should come and pick him up”. According to the phone record,
C the first call from the landline was at 7:46 am, and D2 called back the C
landline at 7:56 am and 7:59 am when he was inside the taxi.
D D
E D2’s WHATSAPP COMMUNICATION (EXHIBIT P69) E
F F
WhatsApp extracted from 97241486
G G
53. On 7 August 2016 at 11:05 pm D2 sent a contact number
H H
8613168339055 to Mubashir. D2 said Mubashir was his friend and he
I shared with him the arrangement of his brother Nawaz illegal entry to Hong I
Kong. D2 said the number was the contact number provided by his brother,
J J
he provided it to Mubashir for their direct contact.
K K
54. On 10 August 2016 at 10:48 am D2 sent a voice message to
L L
Mubashir “Friend, those people, that person of ship how much money is
M being asked inside ferry, the one with the Nawaz, give to that person?” M
Later at 10:53 am Mubashir replied “26” and D2 replied “Ok”. D2 gave
N N
evidence that these WhatsApp appeared because Mubashir asked him if he
O had any knowledge about the money pay, this simply was inconsistent to O
the message recorded.
P P
Q 55. Then at 10:53 am D2 send a voice message to Mubashir Q
“Then he said that I will tell my family one hundred fifty thousand you
R R
now, eight thousand has been given already and hundred fifty thousand
S giving now, then I took out and I said listen, the money has to be paid then S
only people will be allowed to board on the ship … need to pay money
T T
understand I don’t have enough money to (pay) for both of you.” D2 said
U U
V V
- 19 -
A A
B B
the money mentioned in the message was rupee, he was telling Mubashir
C that one of the 2 boys with his brother to come by ship wanted his family C
in Pakistan and him helped to convert the money to Hong Kong and sent it
D D
to him in China. Mubashir advised him that he should not get involved
E with the two boys. E
F F
56. It is noted that at 10:54 am Mubashir replied “There is no need
G friend, to agree, (then complaining headache) you tell him he should not G
talk to me, only talk to them. If one is to read the two messages together,
H H
it appeared that when D2 told Mubashir someone had problem in making
I payment before boarding the ship arranged for the illegal entry, Mubashir I
did not want to take up the matter himself and asked that person should not
J J
talk to him. Considering the messages between Mubashir and D2 as a
K whole, it is suggested that Mubashir and D2 are related to the syndicate K
that arranged the illegal entry of UEs into Hong Kong.
L L
M WhatsApp extracted from 95429826 M
N N
(a) 923128900982
O O
57. D2 said that was his brother Abubaker. On 10 August 2016
P P
at 6:31 pm “the brother” asked D2 “my friend send me my account
Q number”. Then at 6:31 pm D2 sent over a photo depicting the account Q
number of his brother Abubakar. When being asked why would you have
R R
his brother’s bank account number, D2 replied “Because he is my brother
S and he sent me a picture of it. If I need money, I ask him or if we have to S
send.” If D2 needed money, he might have to provide his account number
T T
to his brother, it would only be the case that he wanted to send money to
U U
V V
- 20 -
A A
B B
his brother that he needed his brother’s account number. D2 was not
C supposed to have any source of income in Hong Kong, why would he need C
his brother’s account number in Hong Kong?
D D
E 58. Later at 6:34 pm D2 asked “He has given 40 thousand rupees E
and left or not?” In the next 2 minutes the two confirmed the sum of 40,000
F F
already given and how much to be take out and give to home. D2 explained
G that a friend borrowed HK$3,000 from him in Hong Kong for emergency G
and remitted the equivalent Rupee to his family in Pakistan, namely his
H H
brother’s account. D2 obviously needed his brother’s account to receive
I the 40,000 rupees. I
J J
59. On the next day at 3:02pm “the brother” send three messages
K “It’s done”, “all money”, “any other work”. D2 replied by two messages K
“Thanks” “OK wait”. D2 said 923128900982 was his brother Abubakar’s
L L
phone number. Whoever was the holder of that number, that person was
M awaiting for D2’s instruction. D2 further gave evidence that later on he M
told his brother to send him back the money via his friend’s account and
N N
the brother messaged him that “I have sent that money” referring to the
O record at entry 47 and 48 happening on 13 August 2016 at 9:17 pm and O
9:18 pm.
P P
Q 60. In explaining the Whatsapp messages he sent out, D2 gave Q
evidence that time being he was also informing his brother Abubakar about
R R
brother Nawaz’s situation in China. On 13 August 2016 at 11:37 pm
S Abubakar called and asked “They left or not?”. And he replied at 11:49 S
pm that “They have left” because brother Nawaz would keep him informed
T T
by message or telephone call.
U U
V V
- 21 -
A A
B B
C 61. D2 gave evidence further that sometime after midnight on 14 C
August 2016 at 1:22 am brother Abubakar called and asked what was
D D
happening. And he replied at 1:28 am that “Don’t message, I will find out
E later myself when I’m free and let you know, alright. Now I am busy here”. E
However, D2 said he was not busy at anything, he was at home, it was just
F F
that Abubakar repeatedly messaging him he made such reply. If D2 did
G not want to receive any message he could have just switched off the phone, G
but he was busily communicating with others via his two mobile phones
H H
(Exhibit P80a item 5 &7) during that period of time.
I I
62. According to the record, D2 send another message at 1:28 am
J J
“Not known, if they are still on the way, not receiving the call, will inform
K when they arrive.” Then again at 4:27 am “They have arrived in Hong K
Kong but have not reached me yet, will contact later, wait for a while,
L L
understand?” Then again at 5:15 am “When they reach me, if I know
M anything, will let you know as well, alright, don’t message again and again, M
do sleep”. And then again at 7:36 am “I reply you later, reply you later,
N N
have not arrived yet”. The three UEs arrived at Nim Wan at 0317 hours,
O the aforesaid messages sent by D2 showed that by 4:27 am on 14 August O
2016 he had already learnt the arrival of them.
P P
Q (b) Ali Shah Q
R R
63. D2 said Ali Shah was his friend, he also told this friend that
S his brother Nawaz was coming to Hong Kong. The record showed that S
sometime before early hours of 13 August 2016 Ali Shah called D2. D2
T T
said Ali Shah called to ask about the progress of his brother’s arrangement
U U
V V
- 22 -
A A
B B
and the boys who were coming with his brothers. And he shared
C information obtained from his brother with Ali Shah and telling him a C
vehicle had been arranged. And Ali Shah sent him a message at 11:52 pm
D D
that “alright, no problem, after they sit in the ship, send me message, we
E are going to Tsuen Wan. If the other UEs were not D2’s concern why the E
discussion between D2 and Ali Shah would include the other UEs?
F F
G 64. Then after a missed call at 4:18 am on 13 August 2016, the G
next message from Ali Shah was at 4:18 am on the same day “Hello,
H H
greetings! Yes sir, what happened, have received any news or not, if (you
I still) awake send me message, otherwise good night, sweet dream … Bye”. I
J J
65. On 14 August 2016 at around 9:00 am D2 was arrested.
K Subsequent to that Ali Shah sent a message “Hello” to D2 at 10:42 am and K
followed by a missed call at 10:42 am.
L L
M (c) 85295315752 M
N N
66. D2 said this was his friend “Cookie Shark”. D2 explained that
O his friend was enquiring his brother Nawaz’s situation in China. However, O
it was clear that the message from “Cookie Shark” on 12 August at 11:19
P P
pm was about “to avoid problem for them being staying outside, they have
Q not paid hotel charges yet and that person also have not reached to them Q
yet …” It was not just about D2’s brother Nawaz. Further why would that
R R
“Cookie Shark” so concerned the well-being of all.
S S
67. D2 replied at 11:28 pm that “they will definitely pick up today,
T T
I am in touch with them, they don’t call to avoid from having their number
U U
V V
- 23 -
A A
B B
traced, alright, your brothers … as soon as the situation gets well, they will
C pick, alright, there are policemen going around, that is why they are not C
taking risk, alright, the person is present there down their building.”
D D
E 68. In explaining the Whatsapp messages with “Cookie Shark”, E
D2 gave evidence that because the situation in China was not good “Cookie
F F
Shark” was enquiring about his brother, enquiring if they had left the hotel
G or not, because if they had, they might have to spend the night outside. G
And “Cookie Shark” also wanted him to ask his brother about the payment
H H
of the hotel charges. His reply at 11:28 pm was referring to his contact
I with his brother and about the people who were to pick his brother in China. I
He was informing “Cookie Shark” his brother Nawaz’s situation.
J J
K 69. At entry 6, on 13 August at 1:59 am “Cookie Shark” said K
“Brother today also the work is not done, is there any chance or not? In
L L
Shenzhen is very dangerous place nowadays”. D2 tried to pacify and
M replied at 2:27 am that he had sent the money this morning. They were in M
the hotel and it was not dangerous. Police was patrolling outside and no
N N
raids were being carried out inside the hotels. If D2’s brother Nawaz was
O the only concern and the others were unrelated why would “Cookie Shark” O
sounded so worry and D2 needed to refer to situation of “they”?
P P
Q 70. D2 gave evidence that the money mentioned here was cash in Q
a sum of $1,000 he arranged to bring over to Shenzhen by a friend. As his
R R
brother Nawaz kept him informed there was police patrolling outside the
S hotel so he shared it with “Cookie Shark”. S
T T
U U
V V
- 24 -
A A
B B
71. At entry 10, on 14 August 2016 at 7:22 am, “Cookie Shark”
C called again and asked what happen. At 7:29 am D2 replied “they have C
arrived in Hong Kong, they are in the ship, after the duty is changed then
D D
they take them out”. The friend requested at 7:30 am “Ok when they
E arrived to you, then must send me the sms”. D2 replied “OK” at 7:33 am. E
F F
72. D2 initially gave evidence that he received a call between 7:00
G am and 7:30 am, therefore he informed “cookie Shark” his brother was here G
in Hong Kong at 7:29 am after he made enquiry at 7:22 am. He was at
H H
D1’s residence when he replied “Cookie Shark’s” enquiry. Again if D2’s
I brother was the only concern, why would their conversation mentioning I
“they arrived to D2”? Further it is noted that the alleged “first call” from
J J
a Nepalese in D2’s subsequent evidence, informing him the arrival of his
K brother Nawaz happened at 7:46 am on 14 August 2016. K
L L
(d) Lala
M M
73. D2 said he shared the matter of his brother Nawaz with his
N N
friend Lala. At entry 3 on 14 August 2016 at 12:23 am Lala asked “any
O possibility for them to arrive yet or not?” At 12:24 am D2 replied “…they O
have left the hotel alright, they are going by taxi to that place, with the will
P P
of God, with the will of God, today will be done.” And “Will tell you later”.
Q Q
74. D2 was arrested around 9:00 am on 14 August 2016. At entry
R R
10, later at12:00 pm, Lala called and asked “have the boys arrived yet, what
S happened”. Again if D2’s brother was the only concern, why would their S
conversation mentioning “they” and “boys”.
T T
U U
V V
- 25 -
A A
B B
C 75. D2 explained Lala was asking about his brother but as Lala C
knew his brother was contacting him through other people’s phone, Lala
D D
could have thought that might be others were also coming therefore Lala
E referred to them when he asked about his brother. And further explained E
that out of respect, they would use “they” when referring to an elder person.
F F
I considered and find his explanations unconvincing.
G G
(e) Home
H H
I 76. D2 said he was having conversation with family in Pakistan. I
At entries 15 to 18, on 14 August 2016 within the minute of 3:27 am, Home
J J
asked D2 what happened and D2 replied “still on the way, when I get to
K know, will call myself, alright?” Time being an object was detected K
moving toward Hong Kong water from She Kou Harbour, reaching Nim
L L
Wan and then passed out of Hong Kong water. Apparently D2 knew his
M brother Nawaz and the other UEs had already left Shenzhen to Hong Kong. M
N N
77. D2, however, in clarifying the calls with a Nepalese, gave
O evidence that he was not sure if his brother Nawaz would arrive on 14 O
August 2016, before he received the call from the Nepalese security guard,
P P
he had no idea where and when his brother would call him. He last received
Q his brother’s call between 5 pm and 7 pm on 13 August 2016, after that he Q
called his brother but his brother did not receive the call. If D2 was not
R R
informed by his brother, he must be informed by others as to the arrival of
S the UEs on 14 August 2016. S
T T
U U
V V
- 26 -
A A
B B
78. Further the Whatsapp messages sent out by D2 to various
C people in the early hours on 14 August 2016 showed that he had already C
learnt by 12:24 am that the UEs had left the hotel for their voyage to cross
D D
the border and by 4:27 am the arrival of UEs to Hong Kong and he would
E be informed when they were taken to a pick up point, and at around 7:30 E
am he was still waiting for the call to pick up the UEs. I considered the
F F
evidence as a whole and find the only irresistible inference is that at all the
G material times D2 was not just concerned his brother Nawaz but also the G
other UEs travelling with Nawaz.
H H
I 79. I considered and reject D2’s explanation that the WhatsApp I
extracted was only about his sharing of the illegal entry of his brother only,
J J
and rejected his explanation about the money mentioned in the WhatsApp.
K The abovementioned conversations as a whole suggested that D2 was K
expecting the UEs to arrive Hong Kong in the morning of 14 August 2016.
L L
Apart from the WhatsApp extracted by the services provider, the police
M also managed to extract call logs from some of the mobiles phones seized. M
N N
CALLS BETWEEN THE DEFENDANTS
O O
80. From the call log record extracted from D1 (64626640)
P P
(Exhibit P80a item 15) and D2 (97241486) (Exhibit P80a item 5), D1 and
Q D2 had 2 calls on 13 August 2016 at 19:18 hours and 19:19 hours; D1 and Q
D2 had or attempted to have all together 8 WhatsApp on 14 August 2016
R R
between 1:05:59 hours and 6:05:42 hours. While D2 attempted to make
S one WhatsApp to D3 on 14 August 2016 at 1:08:54 hours. S
T T
U U
V V
- 27 -
A A
B B
81. As per D1’s log record between 1 August 2016 and 13 August
C 2016 there were all together 58 call records between D1 and D2 including C
missed call while there were 2 calls with D3 on 6 August 2016 and 3 calls
D D
on 11 August 2016.
E E
82. As per D2’s log record of (95429826) (Exhibit P80a item 7)
F F
D2 had 2 WhatsApp record with D3 and 1 WhatsApp record with
G D1respectively on 13 August 2016. Between 3 August 2016 and 7 August G
2016 D2 had 25 WhatsApp records with D3, 16 of which was on 5 August
H H
2016; closely before and after that 16 WhatsApp D2 and D1 had 11
I WhatsApp records. D1 gave evidence he would call D2 once or twice a I
day and because they had decided to have a party a week ago, he would
J J
have called D2 about the party since then.
K K
83. As per UE3’s log record (923455471069) (Exhibit P80a item
L L
9) between 1 August 2016 and 11 August 2016 he and D3 had 45
M call/WhatsApp records. Further 13 WhatsApp records was found on 13 M
August 2016 between D2 and UE3’s number, these were between 21:10:55
N N
hours and 23:26:22 hours on 13 August. That was about 3 hours before
O the UEs boarded the vessel to Hong Kong. O
P P
84. UE2’s mobile phone calling record shown that he had called
Q the D2 at 7:38 am on 14 August 2016, and that was a missed call. Q
Thereafter someone using the Landline of the guard post to communicate
R R
with D2 at 7:46 am, 7:56 am and 7:59 am before the defendants were
S intercepted around 8:30 am. S
T T
U U
V V
- 28 -
A A
B B
85. Further as per D2’s call log record, on 14 August 2016
C between 00:00 hours and 08:30 hours there were 78 records in 95429826 C
and 10 records in 97241486 of which 8 related to D1 and 1 concerned D3
D D
as mentioned above. Taking into account of the volume of the
E call/WhatsApp between 1 August and 14 August 2016 and the time of the E
call/WhatsApp that were made, I considered and reject any suggestion that
F F
the calls between the defendants were only calls among friends and
G unrelated to assisting illegal entry to Hong Kong. G
H 86. I considered the evidence as a whole and find the only H
irresistible inference is that D2 was the one in contact with those arranged
I I
the UEs to sneak into Hong Kong by sea. D2 was the one who gave
J J
instructions to D1 and D3 and the two acted as instructed.
K K
CONCLUSION
L L
M 87. D2 gave evidence and provided proof his relationship with M
UE1, there was no contrary evidence to that. I considered and accept their
N N
relationship. However, that one of the UEs was D2’s brother did not cast
O any doubt on the prosecution case that D2 was a leader of the arrangement. O
P P
88. The Pakistan National Day Party was used as a pretext to
Q explain why the three defendants were together in that early morning on 14 Q
August 2016. There was no evidence whether the party was called off or
R R
continued as scheduled without the defendants. However, I do not consider
S the respective defence case, the existence of the party alleged, if so, would S
cast any doubt on the prosecution case.
T T
U U
V V
- 29 -
A A
B B
89. I considered and find the prosecution has proved beyond all
C reasonable doubt that at the time the three defendants got on board the taxi, C
they intended that to be a round trip, to collect the 3 UEs at the Landfill
D D
and come back. The purpose to go there in fairly early hour on a Sunday
E morning was to assist someone remaining in Hong Kong illegally. E
F 90. I considered and find the prosecution has proved beyond all F
reasonable doubt that D2 was playing a leading role in that group of three,
G G
he was a knowing, willing, and active party to the joint enterprise that assist
H the 3 UEs on the morning of the 14 August 2016. H
I I
91. I considered and find the prosecution has proved beyond all
J J
reasonable doubt that the role of D1 was to convey and ensured that the 3
K
UEs were taken to his home. D1 was a party to the joint enterprise to assist K
the 3 UNs’ passage within Hong Kong. D1 was a knowing, willing, and
L L
active party to the joint enterprise that assist the 3 UEs on the morning of
M the 14 August 2016. D1 is convicted accordingly. M
N N
92. I considered and find the prosecution has proved beyond all
O reasonable doubt that the role of D3 was to hold on to the taxi while the O
other two looked for the UEs nearby. Once the UEs were located, he got
P P
out of the taxi and let D1 and the 3 UEs get in and left by taxi. D3 was a
Q knowing and willing party to the joint enterprise that assist the 3 UEs on Q
the morning of 14 August 2016. D3 is convicted accordingly.
R R
S 93. I considered and find this illegal operation was carried by a S
syndicate to arrange and assist the passage of UEs to Hong Kong, to receive
T T
the UEs upon their arrival in Hong Kong and then assisted their onwards
U U
V V
- 30 -
A A
B B
movement within Hong Kong. It was a commercial transaction to the
C benefit of those involved. The operation was an organized crime involved C
substantial planning and organization.
D D
E E
F F
G G
( A Yim )
H Deputy District Judge H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V