HKSAR v. Hafeez Muhammad

DCCC 610/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 610 OF 2015

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Reasons for Verdict

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1.The defendant, Mr Hafeez, faces one charge of robbery. The charge alleges a robbery that took place in Chungking Mansions on 12 December 2014. The only evidence that a robbery took place comes from the defendant in the form of an admission made by him to a police officer on 26 and 27 March 2015.

2.There exists a CCTV recording of part of the incident that the defendant confesses to.  It is capable of providing some supporting evidence to the defendant’s admissions but does not provide direct, independent evidence of the commission of the offence.

3.The defendant denies that he made the admissions attributed to him.  He also says that the circumstances of his arrest and questioning was such as to make any admission, if made, inadmissible due to the use of threats, force and inducement to obtain them, rendering them involuntary.

4.The issue at trial was whether the alleged admissions could be admitted into evidence and, if admitted, could they be relied upon to provide evidence of the commission of the offence and the defendant’s involvement in it.

5.I turn to the evidence now.

6.The issue of the admissibility of the admissions was dealt with by a special procedure investigation conducted within the alternative procedure method. 

7.PW1, a police officer, gave evidence that he stopped the defendant at 2225 hours on 26 March 2015 in the area of Jordan.  He spoke to the defendant in English. 

8.PW1 was reminded on seeing the defendant of a crime report he had seen about a robbery in Chungking Mansions; that was produced as Exhibit P5.  He considered that the defendant resembled a photograph on the report of a person described as “WP1”.  WP1 wore what is described as a “hoodie” with the number “72” on its back.  The defendant was dressed in such a garment at the material time when PW1 saw him.  He thought the defendant’s build and physical appearance very similar to WP1 on the crime report. 

9.He and the defendant communicated in simple English.

10.PW1 introduced himself.  The defendant is said to have said to him, “Sorry, sir.  What happened?”  PW1 then told the defendant about his suspicions that he, the defendant, was involved in the robbery in Chungking Mansions on 12 December 2014 and then cautioned him.  The defendant is said to have replied, “Sorry, sir.  I am one of them.  We hit the man and I stole his backpack.”  PW1 asked, “Who were the four men?”  The defendant is said to have replied, “Sir, I don’t know them before.  I just met them that day before the case near Chungking Shopping Arcade.” 

11.PW1 asked why he hit the man and stole the backpack.  The defendant replied, “Sir, because I meet them outside Chungking Shopping Arcade.  A guy who wear a red jacket to give me $100 after I steal the bag.”  PW1 asked if the defendant could contact the four guys.  The defendant replied, “I don’t know their name and how to contact them.  I also don’t remember their face.”

12.PW1 cautioned him again and then the defendant said, “Sorry, sir.  I am greedy.  We hit the man and I stole his backpack. When we went out the arcade, the red-jacket guy give me HK$100 and I give the backpack to him.  The $100 I received was spent on buying food to eat.” 

13.The defendant then was taken to a vehicle and then taken to a police station where he was detained.

14.PW1 did not see the defendant again until 2118 hours on the next day, 27 March 2015.  This was to conduct an interview.  They had waited until then to obtain an Urdu interpreter.  

15.What is described as a post-recorded statement was taken between 2130 and 2300 hours that evening; that is produced as P6.  This was effectively a post record, with the defendant confirming by his signature the conversation that had been conducted in the street the day before. 

16.The other prosecution witness, PW2, was another police officer who had accompanied PW1 on 26 March and had acted as the guarding officer.

17.The defendant only gave evidence on the special issue.  He said he had come to Hong Kong in 1995, legally sponsored by his grandfather, although his status now was as a torture claimant.  He says that he speaks Urdu but cannot read or write it and he speaks broken English.

18.He was approached by police on the evening of 26 March.  He says there were six to seven police officers.  They caught him, took him to an old building where they slapped and pushed him to a wall.  He could not understand what they said and they kept on slapping him and threatening him.  They said, “You are in trouble.”  They slapped him in the face.  They said, “We will not leave you.  We will send you to Pakistan.”  They said, “There is a case on you.”  He only understood the case against him after he was taken to the police station and, he said, shown photographs.  He said he made no admissions about a robbery when he had been stopped in Shanghai Street.

19.On the next day, before the interpreter came he was told that the interpreter would come.  He was told he should just sign and if he did not sign the document then he would not be given bail and so, on this basis, he signed the document.

20.On the special issue, the defence submitted that PW1’s account of the arrest and caution was unlikely.  That was because PW1 had disguised the real reason why he decided to stop the defendant on the street, namely, because he wore a “hoodie” similar or the same as to the person in the crime report, the person described as WP1, and PW1 instead had to say it was because the defendant was acting suspiciously.

21.It is said that the admissions attributed to the defendant by PW1 were not credible.  They were not broken English but good, grammatical English.  They were too neat, too precise and too well spoken for the admissions to have been authored by the defendant.  They were also unlikely to have been made unprompted, that the defendant was only asked to confirm these alleged admissions over a day later.

22.On relating the matter to the duty officer, PW1 said he had mentioned the defendant’s admissions.  Yet, there was no record of this salient fact in the record compiled by the duty officer.  It was also said that PW1’s reasons for not conducting a video recorded interview when such facilities were available in the police station was inadequate.

23.On the contrary, the prosecution’s case was that PW1 and PW2 were truthful and reliable witnesses, that the defendant’s account of the arrest and his subsequent interviewing were obvious fabrications, and that the version of the police should be accepted.

24.The defence sought to exclude all oral and written admissions made by the defendant.  That included the document P6, the post-recorded interview.  It also included the alleged admissions made on the arrest that the defendant, in fact, denied having made. 

25.It is, of course, necessary to examine the circumstances of the defendant’s arrest, detention and interview to see whether anything occurred that would render anything said by the defendant to be inadmissible by way of it being involuntarily obtained or unfairly obtained.

26.The allegations put forward by the defendant consists of threats, the use of violence and inducement and oppressive conduct and also an element of unfairness in the failure to use the video recording technology in the police station.

27.The issues to be decided are basically factual: was it possible that the defendant was subject to any of the treatment alleged by him?  For, were there such a possibility, the defendant’s utterances, if made, and the ones that were made would clearly be inadmissible.

28.The prosecution must, of course, prove the voluntariness of the defendant’s actual and alleged admissions beyond reasonable doubt.  They attempt to do so by a combination of PW1 and PW2’s evidence and the physical documentation in the trial.

29.I found that the issue to be determined was primarily one of credibility. 

30.I noted that the two prosecution witnesses were consistent and not shaken in cross-examination. 

31.I noted the submissions made in respect of the fact that PW1 had said the defendant acted suspiciously.  I saw nothing in the evidence to suggest that was not the case.  

32.I also noted the submissions made in respect of the standard of English attributed to the defendant in their conversations.  On a reading of those admissions as recorded in P6, they do reflect that English is not the defendant or PW1’s first language, but I found they were otherwise unremarkable and were the level of English one might expect from both of the people concerned in the conversation.

33.The absence of a record of the alleged admission to the duty officer is again, I did not find that of any great significance. The duty officer is compelled, of course, to record essential details of the arrest and the detention of suspects.  It is not a statement of evidence nor is it intended to be; it is an administrative record and would simply be a record of what the duty officer considers he should record.

34.I accepted on the evidence PW1 and PW2 to be truthful witnesses as to their dealings with the defendant. 

35.This contrasted with the defendant, who clearly was lying and exaggerating in his evidence.  He describes a series of assaults. He describes being taken into another building. Clearly his evidence has to allow for him to be taken into the building because a person being assaulted on the street would obviously attract great attention.

36.He gives evidence of these activities by the police, but no compliant is made of this to any person at any time until trial.  He says the contents of admissions are fabricated but that is certainly not how they read.  He was made aware of his rights when Pol 153 forms were explained to him in English on the 26th and in Urdu on 27 March.  Yet, he does not make any complaint at that stage.

37.I found the defendant was plainly untruthful about what happened when he was arrested and about what he said and what was said to him, and I rejected his evidence about his detention in its entirety. I found there was no assault, inducement, threat or oppressive conduct in the handling of the defendant on 26 and 27 March.

38.There is the question of the lack of a video recorded interview on 27 March - in fact, the lack of any substantive interview - as the defendant merely confirmed the post record taken on 26 March. 

39.Use of a video recorded interview by way of the technology available represents the best way of taking a statement from an accused.  However, the failure to use such technology, such video recording technology, even where it is available, is not and cannot be an automatic reason to exclude an otherwise voluntary statement.

40.The defendant was given the opportunity to correct, alter or add anything to the statement.  Yet, he declined to do so.  I do not find in this case that there was any operative unfairness to the defendant by the failure to use video recording technology.

41.I, therefore, find that the admissions and their reductions into writing were given voluntarily by the defendant and I saw no basis to exclude them from evidence under my residual discretion and I admitted them into evidence. 

42.The only probative evidence against the defendant as to the existence of the offence and the defendant’s participation in the offence comes from his admissions on the street as recorded in the post-recorded statement.

43.The court, if it is to rely on those admissions, must be satisfied not only beyond reasonable doubt as to their voluntariness, but also as to their existence that they actually took place and their reliability. 

44.The prosecution, of course, in all criminal cases bears the responsibility to prove the case beyond all reasonable doubt.

45.In order to establish a robbery, the prosecution must prove beyond reasonable doubt that there has been a theft, namely, the dishonest appropriation of property belonging to another with the intention of permanently depriving that other of it and that force must be used immediately before or at the time of doing so and in order to steal.  The prosecution must prove the defendant used force on the victim or put him in fear that he would immediately be subject to force.

46.The defence argued that, in any event, no weight should be attached to the admissions.  They say they are not a true record of what was said by the defendant. 

47.Again,  reference is made to the defendant’s English capability.  It is said his capability could not produce admissions of this nature. 

48.It is said there was no forensic evidence that implicated the defendant in whatever may have occurred at Chungking Mansions on 12 December 2014.  The “hoodie” type that the defendant wore when he was arrested with the number “72” may be a commonplace design.  It is not known. It is also said the CCTV recording, when viewed, does not confirm the defendant’s account of the robbery or the defendant’s presence at the robbery.

49.In his admissions to the police officer, the defendant relates handing over the bag to the man in the red jacket and also receiving $100 from him and this is in the form of the defendant saying, “When we ran out of the arcade, the red-jacket guy gave me HK$100 and I gave him the backpack.” 

50.The CCTV recording does show a man in a red jacket and a man wearing the “hoodie” with the “72” on its back.  The man with the “72” is shown taking a backpack away but there is no record of the transfer of the backpack to the man in the red jacket or the handover of money by the man in the red jacket to the man wearing the number “72” “hoodie”.

51.I found, having heard all the evidence in the case, that the first prosecution witness had correctly recorded what had had, in fact, been said to him by the defendant, that the words attributed to the defendant were actually said by the defendant, and the words themselves are a true and reliable account of the defendant’s involvement in what occurred on 12 December 2014. 

52.The CCTV record provides support for certain aspects of the defendant’s account, but is not a comprehensive record.

53.The CCTV supports the defendant’s account in certain areas, namely these:

(1) firstly, that he was involved. A man wearing the number “72” “hoodie” is present at the relevant time and date. His physique, or the build, as the police officer refers to, is similar to the defendant’s and the regularity of his facial features is similar to the defendant’s. The defendant bears a clear similarity to the man, WP1, shown in the photographs and also on the CCTV shown wearing the “72” “hoodie”, an item he was wearing when arrested. This man carries the bag away from the scene. This could be seen from the CCTV, where WP1, the man, is seen leaving the scene, carrying a bag;

(2) that another part of the defendant’s admission is that there was a man present who wore a red jacket. This can also be seen from CCTV record and the still captures from that record;

(3) the defendant also said he committed the act in the company of three other men. Three other men can be identified as being associated with WP1 on the CCTV.

54.A definitive identification of the defendant cannot be made from the CCTV due to the limitations of the system.  However, it certainly cannot exclude the defendant, as the defendant bears a good degree of similarity to the person shown on the CCTV wearing the number “72” “hoodie”.

55.Therefore, the CCTV recording provides clear supportive evidence of the defendant’s admissions to the police.  In it and in his admissions, the defendant admits being part of a joint enterprise to commit a robbery in clear terms.  These are where he says, “I am one of them.  We hit a man.  I stole his backpack.”  This is a clear description by him of using force immediately before or at the time of stealing and in order to do so.

56.I find, beyond all reasonable doubt, the defendant has made a clear, truthful and reliable admission to having been involved in a robbery as charged in the indictment.  There is clear supporting evidence of the defendant’s admissions and I find them reliable. 

57.I am, therefore, satisfied of the defendant’s guilt on this charge beyond reasonable doubt and I convict him accordingly.