HKSAR v. Muhammad Saqib

CACC 232/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 232 OF 2015

(ON APPEAL FROM HCCC 278 OF 2014 AND 150 OF 2015)

------------------------

------------------------

Before: Hon McWalters JA in Chambers (Open to Public)

Date of Hearing: 24 September 2015

Date of Decision: 24 September 2015

Date of Reasons for Decision: 2 October 2015

-----------------------------------

REASONS FOR DECISION

-------------------------------

Introduction

1.The applicant, the 4^th defendant at trial, was jointly charged with four others with the offence of forcible detention of a person with intent to procure a ransom for his liberation, contrary to section 42 of the Offences Against the Person Ordinance, Cap 212.  I shall refer to this offence by its shorthand description of kidnapping.  The applicant and the 1^st and 2^nd defendants were also charged with the offence of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.

2.All the defendants pleaded not guilty to the offences with which they were charged and were tried before Toh J (“the judge”) and a jury in June 2015.  On 23 June, by the verdict of the jury, they were all convicted of the kidnapping offence and those charged with the robbery offence were all acquitted of it.  On 24 June the applicant was sentenced by the judge to 19 years’ imprisonment for the kidnapping offence.

3.The applicant applied for bail pending appeal and at the hearing of his application I refused it.  I said I would hand down my reasons for so doing at a later date and this I now do.

The trial

4.The 1^st and 2^nd defendants absconded before trial and were tried in their absence.

5.The prosecution alleged that on 25 October 2013 three Indian victims were lured into coming to Hong Kong and, once here, were assaulted and threatened and detained at three different locations. They were put in fear of their lives for a period of four days.  A ransom of about HK$90 million (100 million rupees) was demanded for their release.  An amount of 500,000 rupees was paid in India on 27 October 2013 and on 28 October the victims were released.  All the defendants were of Pakistani nationality.

6.Of the three victims only one returned to give evidence.  That person positively identified the applicant and gave detailed evidence of his role in the crime.  The prosecution also called the person who had provided the vehicle to the applicant which he used to pick up the victims from the airport.  This person, who testified under an immunity from prosecution, said that after the offence the applicant told him to lie to the police about this vehicle.  The evidence of this attempt to enlist a friend to give false information to the police could have impacted on the credibility of the applicant’s defence, for that defence also involved the applicant seeking the assistance of another to support the alibi he was relying upon.  

7.The applicant did not give evidence but his police video record of interview was placed in evidence by way of admitted facts.  This contained his assertion that he was working on the days on which the kidnapping took place.  In support of this alibi he called his employer.  It appears to have been clear from the employer’s evidence that he had no documentary records of the days the applicant attended work and had no independent recollection of those days.  He was, effectively, just repeating what the applicant had told him were the days that he, the applicant, had attended work.  Also relevant to the defence case was an admitted fact that no DNA or fingerprints of the applicant were found at the scene of the crime.

8.The defendants were sentenced as follows for the kidnapping offence:

The 1^st and 2^nd defendants – 19 years’ imprisonment

The 3^rd defendant – 12 years’ imprisonment

The 4^th defendant – 19 years’ imprisonment

(The applicant for bail)

The 5^th defendant – 15 years’ imprisonment

9.In sentencing the 1^st and 2^nd defendants the judge described them as the ringleaders of this criminal enterprise.  In sentencing the applicant the judge assessed his level of culpability for this offence as on a par with that of the 1^st and 2^nd defendants.  

The grounds of appeal

10.The applicant is not legally represented and so there are no perfected grounds of appeal before me.  However, the applicant wrote to the court and in his letter he made the following complaints:

1) the two other victims, who were eyewitnesses, did not testify;

2) there was no forensic evidence to link him to the crime and the prosecution case against him was weak;

3) the victim, who was the only prosecution witness who implicated him, was not credible;

4) he reasserted his alibi defence and referred to the evidence of his employer; and

5) the translation at his trial was poor.

He requested a retrial at which the other two victims would testify.

11.At the hearing of his application he again complained about the absence of two of the victims and repeated his point that there was no DNA or fingerprint evidence to link him to the crime.  He also raised, for the first time, that he could not communicate properly with his counsel as there was no interpreter and his counsel, Ms Panesar, only spoke Indian Punjabi and not his language which was Pakistani Punjabi. Finally he referred to his exculpatory statement to the police and the evidence of his employer.

Discussion

12.Unlike bail pending trial, a convicted person has no right to bail pending the hearing of his appeal.  He bears a burden to demonstrate that he has grounds of appeal which are likely to succeed or that there is a risk that the entire or a substantial part of the sentence would have been served by the time the appeal was heard.[1] The latter consideration does not arise in the present case.

13.In explaining to the applicant the legal position regarding bail pending appeal I emphasized to him that the Court of Appeal does not retry his case and that it was incumbent upon him to demonstrate in his grounds of appeal some error, mistake or flaw in his trial that would likely lead to his appeal being successful.

14.His complaints, as contained in his letter to the court and as articulated at the hearing of his application, do not come anywhere close to demonstrating a ground of appeal that is likely to succeed.

15.The absence of the other two victims is unfortunate.  However, their absence does not reduce an otherwise strong case to a weak one and nor does it necessarily render the trial of the applicant unfair.  In respect of the lack of DNA and fingerprint evidence, this court has said many times that a lack of such evidence should be regarded as neutral and not as exculpatory of a defendant. 

16.The evidence of the victim clearly identified the applicant as a prominent member of this kidnapping ring and hence the severe sentence of the judge.  Once this witness was believed, the conviction of the applicant was inevitable.  Whether the witness should be believed was, of course, a matter for the jury.

17.The alibi evidence came from an exculpatory record of interview and, because the applicant chose not to give evidence, it was untested by cross-examination in front of the jury.  The evidence of the employer was so weak it clearly did not provide independent support for the alibi.  The assessment of the reliability of the employer’s evidence and the weight to be attached to it was a matter for the jury.

18.The complaint in respect of the interpretation relates not to the trial but to the pre-trial conferences with counsel.  If the applicant wishes to pursue this as a ground of appeal he will have to provide detailed evidence in respect of it explaining how it affected his conferences with his counsel.

Conclusion

19.For these reasons I refused the application for bail.

Ms Lam Tak Wing Winnie SPP, of the Department of Justice, for the respondent

The applicant appeared in person

[1] See HKSAR v Lau Man Kin [2010] 1 HKLRD 336.