HKSAR v. Beagum Bilkish

DCCC 657/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 657 OF 2016

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REASONS FOR VERDICT

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1.The defendant has been charged with a count of robbery.

Prosecution’s case

2.Miss Mstrehana (PW1) is a Bangladeshi lady who formally worked as a domestic helper in Hong Kong.  PW1 knew the defendant, also a Bangladeshi lady, back in February 2014 for the first time when they were in the training centre for domestic helpers in Bangladesh.  PW1 came to Hong Kong in late 2014 and has worked for her former employer for 4 months before her contract was terminated in March 2015.  After that, she was living in Kam Tin until July 2015, during which the defendant was her neighbour.  PW1 then moved to Yuen Long and lived there until end of 2015.  Since early 2016, PW1 applied as an asylum seeker and was living in a place offered by the International Social Service (ISS) in Yau Ma Tei, where the defendant, together with another Bangladeshi male, was sharing the same room with PW1.  PW1 saw the defendant everyday there and then and she regarded the defendant as a person in good nature.  That was the reason why they made arrangement with ISS to live together.  The defendant subsequently moved out from the Yau Ma Tei place in March 2016 and both of them did not see each other until the offence day.  After the defendant has moved out for 10 to 15 days, she called and told PW1 that she was pregnant and would like to return to Bangladesh soon.

3.In the evening on 16 April 2016, when PW1 was sitting on a bench waiting for a friend called “Ruma” in a park near Nam Cheong MTR station, the defendant appeared and sat next to her for a chat.  PW1 was actually feeling unwell for some days already and she was waiting for “Ruma” to accompany her to see the doctor as PW1 needed someone to translate for her.  During the conversation, the defendant told PW1 then she was returning to Bangladesh in a few days and would go to the Castle Peak Immigration Centre at around 10 am on 20 April 2016.  The defendant also told PW1 that she needed money and wanted PW1 to give her $4,000.  PW1 refused the request as her auntie was unwell and needed money too.  The defendant appeared to be angry and left. PW1 remained seated there in the park.

4.Shortly afterwards, the defendant returned and got hold of PW1’s neck from behind.  The defendant then started to hit PW1 on her head, shoulder, chest and arms.  During which, PW1 managed to turn around her head and saw the defendant’s face.  PW1 felt painful and the defendant swiftly took away her black purse containing cash of HK$12,000 from her opened handbag placed beside her.  The defendant fled while PW1 turned around and shouted in her dialect “Catch her!”.  PW1 was not able to follow the defendant as she had headache and was too weak.  She saw the defendant’s back and recognized her in her black Burqa which the defendant was wearing on that day.

5.PW1 was crying and there came a Bangladeshi male asking what had happened.  PW1 told the male about the incident and that male helped her to call the police.  PW1 was subsequently asked to go to Sham Shui Po police station however no interpreter was available on the day.

6.In the morning of 20 April 2016, PW1, together with a male friend, went to the Castle Peak Immigration Centre to look for the defendant as she remembered the defendant had told her that she would be there departing on the day.  There and then, PW1 met the defendant and confronted her.  In light of the quarrel between them, immigration officers were alerted and the case was reported to the police.  The defendant was subsequently arrested and PW1 was asked to go to the Sham Shui Po police station for investigation later in the afternoon on the same day.

Defence’s case

7.The defendant elected not to give evidence nor call any defence witness.

8.Upon arrest, a video recorded interview was conducted with the defendant on 21 April 2016.  The defendant, under caution, said that she came to Hong Kong to work as a domestic helper in 2014 and her contract was prematurely terminated due to the death of her employer.  She then made a claim for non-refoulement protection.  She claimed not knowing PW1 at all.  However, 3 days before arrest, the defendant was assaulted by PW1 and others in Tsuen Wan MTR station during which PW1 had demanded repayment of money from her.  The defendant did not remember where she was on 16 April 2016 but she had not gone to Sham Shui Po area for four months already.

Discussion

9.The crux of this case is no doubt the credibility of PW1 who was the main prosecution witness.  The burden of proof is always on the Prosecution to prove each element of the offence beyond all reasonable doubts.

10.I have carefully considered all the evidence given by PW1 and observed, with caution, her demeanour in the witness box.  I have also born in mind that in cases like the present one against one situation, especially where the stolen property could not be recovered, it is easy for the complainant to fabricate the evidence while it is very difficult for the accused to rebut the allegation. 

11.PW1’s evidence was generally direct, logical, clear and, most importantly, consistent with the undisputed evidence in the present case.  For example, the defendant was pregnant at the material time and she was departing on 20 April 2016 at the Castle Peak Immigration Centre which could not have been known by PW1 if they were total strangers as said by defence.  Neither was PW1’s evidence shaken under cross-examination.  I find her to be an honest and reliable witness and attach full weight to her evidence.

12.Mr Parry for the defendant raised a number of matters trying to persuade the court that PW1’s evidence was not trustworthy.  It was raised that the identification of PW1 could not be reliable as on her own account of the incident, the assailant came from behind and held her neck and assaulted her from behind.  PW1 also testified she was unwell on the day too.  However, PW1 stated steadfastly that she saw clearly the one who held her neck was the defendant as she managed to turn around her head and saw the defendant’s face, though briefly.  She also recognized her back in her black Burqa when she was fleeing with the stolen money.  As PW1 had known the defendant for 2 years and the defendant did appear and chat with PW1 shortly before the robbery, the short glimpse and unwell condition of PW1 was not damaging on the identification of the defendant.

13.Mr Parry also submitted that the fact that PW1, being an asylum seeker, carrying $12,000 cash in her handbag in a place new to her was nothing more than strange.  As a Hong Kong citizen, one may find it hard to understand at the first place, however it sounds sensible if one step into PW1’s shoes.  PW1 explained that when her contract was terminated, she was given $20,000 altogether by her ex-employer.  She then got some financial assistance from ISS and spent $8,000 out of $20,000 during the period.  She carried the remainder of the money around as she found it unsafe to keep the money in her residence because the room was shared with two others.  Neither was she eligible to apply for any bank account in Hong Kong.  She put the $12,000 in a small black purse while she also had some $200 odd dollars for her daily use placed in the zipper bag of her handbag.  Her handbag was placed next to her which was open at the material time as she needed to take the water bottle in and out.  I do not find this part of her evidence unbelievable.  Neither is it able to cast any doubt on PW1’s testimony.

14.PW1 said before she waited her friend “Ruma” at the park with a view to seeing the doctor with her, she had been unwell on and off for 10 days.  Defence counsel put to her that was not logical.  PW1 explained that she had taken some painkiller from the dispensary and her condition fluctuated.  It was until the material day that she thought she really needed to see the doctor and her friend Ruma who could translate for her promised to accompany her.  They said to be waiting at Exit B2 initially but she arrived much earlier.  She then sat on a bench in a park near the MTR station waiting for Ruma who said she would call PW1 again upon arrival. 

15.PW1 did not know the name or exact whereabouts of the park as it was her first time being there.  The witness statement was in fact written in narration by a police officer for PW1 and it was not surprising at all why the exact name of the park was written on it.  PW1 insisted that she was told the name of the park only after the incident.  As a matter of fact, PW1 was not able to recognize the pictures of the park prepared by the prosecution, which to me was consistent with what PW1 had said all along.  I find PW1 to be a direct and honest witness.  She is not exaggerating and those “imperfect” parts of her evidence were understandable and not material.  It further supported that she was not making up the story against the defendant.  She should have fabricated a more perfect and less complicated version should she wish to do so.  Her evidence was adamant and consistent all along.

16.PW1 testified that after the defendant’s taking away her money she had not done anything until a passer-by came across and helped her to make the report to the police.  It was challenged by the defense counsel as nonsensical. Again, this fact has to be considered with PW1’s situation.  She could not communicate in English or Chinese.  She was unwell and had headache at the material times.  She had been quite severaly beaten up by the defendant and she still felt painful.  That was why she only knew crying after the incident.  She did not call the police nor her friend, as she knew Ruma was busy and was not able to help immediately anyway.  PW1 was too upset and weak to do anything until a Bangladeshi man saw her crying and helped.  I accept PW1’s version and do not find it in any way diminishing her credibility.

17.PW1 also told the court that in the afternoon of 20 April 2016 after the defendant’s arrest and before she went up to the Sham Shui Po police station, another Bangladeshi male approached her at the MTR station when he saw her crying.  PW1 then told him briefly the incident and showed him defendant’s picture, which she had brought everywhere after the incident with a view to looking for the defendant.  That male Saleh Abu told her that he was in the park at the material time and could help PW1 to give evidence should she need to.  Saleh Abu then left his contact number to PW1 and Saleh Abu was subsequently contacted by the police and was called to give evidence in court as PW2.  However when PW2 was in court, he said he had very vague memory in the incident and could not recollect what he saw in the park now.  PW2 appeared to be either evasive or not understanding most of the questions.  I have no alternative but attach no weight to his evidence.

18.It was suggested by the defence counsel that PW2 was the male accompanying PW1 assaulting the defendant on 18 April 2016 and confronting her again for repayment on 20 April 2016.  Both PW1 and PW2 told the court that they did not know each other before this incident and it was the interpreter (presumably upon request by police) who asked PW1 to call PW2 and asked if he was willing to be a witness.  If they were acting in concert to frame the defendant’s up, the question firstly was why?  As according to defence case, the defendant and PW1 did not know each other and secondly, why PW2 suddenly withdrew his evidence in court if he wanted to fabricate his evidence against the defendant?  In fact what PW2 said in his witness statement was not entirely helpful to the prosecution.  PW2 told the police that he had saw PW1 struggling with another female at the material time and he was not able to identify the defendant in the ID parade.  In any event, I do not find PW2 and PW1 had such ulterior motive as suggested by the defence.

19.I have carefully considered the possibility of PW1 framing up the defendant. However, as what the defendant had claimed in her cautioned statement and evidence in court that she did not know PW1 at all, why PW1 needed to pick on her and frame her up?  Also should PW1 wish to set her up, she should have told the court a less flawed story.  In any event, I consider PW1’s evidence to be logical and reasonable and her testimony was direct and obstinate.

20.Although the defendant chose not to give evidence nor call any defence witness on her behalf, I do not and have not held any adverse view on her because of that.  The defence case through Mr Parry was generally in line with what the defendant said in the cautioned interview in that she did not know PW1 at all and several day before 20 April 2016, likely on 18^th, PW1, together with others, suddenly appeared at Tai Wo Hau MTR station and assaulted her during which PW1 also demanded repayment of money from the defendant.  The defendant had not been to Sham Shui Po for 4 months and she was not sure where she was on 16 April 2016.  Having considered carefully the defence case, I find it unconvincing and defying common sense.  Neither is it able to raise any reasonable doubts on the prosecution case.

21.Analysed as the above, I attach full weight to PW1’s evidence and am satisfied that the prosecution has proved to the standard of beyond reasonable doubt that at the material time, the defendant did rob PW1 of her wallet and cash of $12,000.  Accordingly, the defendant is found guilty as charged.