HKSAR v. Zahid

CACC 282/2017

[2018] HKCA 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 282 OF 2017

(ON APPEAL FROM DCCC NO 985 OF 2016)

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BETWEEN

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J U D G M E N T

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1.On 28 August 2017, the applicant was convicted after trial by Deputy District Court Judge E Lin of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (the Ordinance) (Charge 1), and obtaining property by deception, contrary to section 17(1), of the Ordinance, (Charge 2).

2.On 8 September 2017, he filed a notice of application for leave to appeal against conviction in which he complained that the identification evidence against him was very weak.

3.In the Perfected Grounds of Appeal dated 7 May 2018 signed by Mr Phillip Ross, counsel for the applicant, it is complained that the judge engaged in impermissible reasoning to make the findings that (1) the arresting police officer (PW4) was truthful and accurate; (2) the applicant should be disbelieved; (3) the alibi witness should be disbelieved; and (4) the shop assistant (PW2) had correctly identified the applicant as the culprit.

4.The prosecution case against the applicant was fairly straightforward.  It was alleged that he had stolen the credit card of another person (Charge1) and used it to purchase three watches (Charge 2).  The credit card belonged to Mr Ho Wai Kin (PW1) who in the evening of 24 January 2016, went out to have dinner in a restaurant in Nathan Road and parked his motor vehicle in Fuk Wa Street.  At about 10:30 pm, he noticed that the Visa credit card (the credit card) he was carrying in his wallet had gone missing. The credit card was used that evening in a transaction to purchase three watches, one of which was a Casio watch, in the sum of $5,900 at Number 7 Watch Group at Shop B1, 337 to 339 Nathan Road (the shop).  Mr Ho had not authorised the transaction.

5.At about 10 pm on 24 January 2016, Mr Chung Yat Chun (PW2) was working at the shop alone when four men of South Asian descent entered.  One of the men was the applicant.  He requested to purchase three watches but said he was in a hurry.  He successfully transacted the payment of the watches using the credit card.  He left the shop with the watches, retrieving the credit card and taking both the merchant and customer copy of the transaction invoice.  Mr Chung realised that the purchaser of the three watches had also taken the merchant copy of the transaction invoice and informed the owner of the shop as to what had happened.

6.At around 6 pm on 25 January 2016, the applicant returned to the shop with one of the watches that he had purchased, the Casio watch, for assistance because he did not know how to use it.  Mr Chung, after informing the owner of the shop of the applicant’s attendance, alerted the police.  The applicant left the shop, leaving behind the watch.  He also left behind his bicycle that he had parked outside the shop.  Mr Chung pursued the applicant and eventually subdued him at Sai Kung Street, near Shanghai Street.

7.The applicant was arrested and cautioned by PC19649, Mui Chun Yeung, (PW4), who searched the applicant and found in his trouser pocket a plastic bag containing two description cards for a Casio watch and extra links for a watch bracelet.

8.The applicant denied the charges against him. He testified in his own defence and said that he was at home in the evening of 24 January 2018 and had not gone to the shop in question.  He said that on the next day he came across a friend, Fareed Ali, who owed him $500.  He had been chasing him up for repayment of the money and demanded that he pay him.  Fareed Ali said he did not have the money and gave him the Casio watch instead.  He noticed that the strap was too long and Fareed Ali took him to the shop where he could have the strap adjusted.  Sometime later he went to the shop.  He had to wait for 15 minutes as the female shop assistant was serving another customer.  When he was attended upon, he was told that he would have to wait 15 to 20 minutes to have the strap adjusted.  He told the female shop assistant that he would come back later and pick up the watch.  She spoke to another male in the shop who then grabbed the applicant and shouted at him in foul language.  Two other men also came into the shop and started beating the applicant.  The applicant left the shop and the three men chased after him.  He fell down and was subdued by the men.  He said that it was a case of mistaken identity when the shop assistant identified him as the purchaser, and what had happened on 25 January 2018 at the shop was a misunderstanding.

9.The applicant’s cousin, Khan Naveed, gave evidence in support of the applicant’s alibi that he was at home in the evening of 24 January 2018.

10.It appears that the main issues at trial were whether Mr Chung had been mistaken when he identified the applicant as the purchaser of the watches in the evening of 24 January 2016, and whether the two description cards for a Casio watch and the extra links for a watch bracelet were recovered from the applicant on being searched by PC 19649.

11.The judge accepted the evidence of Mr Chung who testified that he served the applicant on the two occasions.  He noted that Mr Chung gave a clear and precise description of what had transpired in the evening of 24 January 2016 when he served the applicant and sold the three watches to him.  He further noted that the applicant was in the shop for 15 to 20 minutes and that Mr Chung had face-to-face dealings with the applicant as he negotiated the purchase of the watches.  The judge concluded that Mr Chung had a good look at the applicant and correctly identified him. 

12.Mr Ross asks the rhetorical question that if the applicant was the culprit would he return to the shop where he had stolen a watch less than one day after the theft.  First, it was not alleged that the applicant had stolen a watch, but rather that he had fraudulently used a credit card.  Secondly, this question focuses away from the evidence as to whether the shop assistant correctly identified the applicant as the purchaser of the watches.  The judge rejected the evidence of the applicant and his alibi witness, although Mr Ross seeks to show that he was wrong to do so.  I do not find that his criticisms of the judge’s rejection of their evidence to provide reasonably arguable grounds, which are mainly directed on the judge’s assessment and evaluation of the evidence of the applicant and Mr Khan. He carefully considered and analysed their evidence, as well as having the benefit of seeing and hearing them when they testified.  

13.Mr Ross criticises particularly the judge’s assessment of Mr Khan’s evidence when he noted in his reasons for verdict that when he was asked why he could remember the evening of 24 January 2016, he said simply “I remember”, but his evidence was that he agreed that he remembered because he received a call from the applicant on 25 January 2016. The judge went on to note that he had neither given a witness statement, nor told anyone about the evidence that he was to give.  He further noted that his evidence was “identical to” that of the applicant, noting in particular the estimated time of the applicant’s trip to buying dinner.  However, he went on and stated:

“41. Having considered his evidence as a whole, I find myself unable to believe him. I found it was inherently improbable that one can recollect the events of a particular day in which apparently nothing special happened. Nor do I believe in the defendant’s evidence in the alibi. I did not find the evidence capable of giving rise to any reasonable doubt in the prosecution’s case.”

The judge clearly based his assessment of the Mr Khan’s testimony on an appraisal of his evidence as a whole.  I do not see any merit in this point.

14.One of the major points submitted by Mr Ross as to why Mr Chung’s identification of the applicant as the purchaser is unreliable was because he testified that when the applicant came into the shop on 25 January 2016, he immediately checked that the Casio watch was the one “stolen” the day before.  He contended that he identified the applicant by associating him with that watch.  Mr Chung testified that the applicant came into the shop and asked him how to use watch and “I checked the warranty card to make sure that that was the watch I sold him the day before.”  In cross-examination, he was asked if he was somewhat surprised when the applicant walked into the shop on 25 January 2016 and he said he was.  Upon further questioning, he said he was sure that on 25 January 2016, the applicant was the same person who purchased the watches the day before.  This proposition as submitted by Mr Ross is without foundation.

15.The judge also accepted the evidence of the arresting police officer that he found in the applicant’s pocket two description cards of a Casio watch and extra links for a watch bracelet.  The evidence of the shop owner, which the judge accepted, was that the two cards and extra links belonged to the Casio watch that had been sold through his shop on 24 January 2016.  Mr Ross seeks to question the judge’s acceptance of PC 19649’s evidence on the basis of a matter that was fully ventilated at trial, concerning the fact that the Casio watch that was retrieved from the shop was also in the exhibit bag with the two cards and extra links that the police officer said he seized from the applicant.

16.The police officer did not know why the watch was in the same exhibit bag together with the items he seized from the applicant.  In cross examination, he said that he did not know who seized the watch but reiterated that he seized the cards and extra links from the applicant when he arrested him at Sai Kung Street. 

17.Mr Ross argues that the watch and the other items were in the same exhibit bag because they were seized at the same time from the shop.  The judge considered this issue and accepted the evidence of the police officer.

18.Mr Ross further argues that the judge was wrong to have accepted the evidence of the police officer, and having done so rejected the evidence of the applicant, whose evidence would have undermined the evidence of Mr Chung. 

19.Mr Chung’s evidence was that the applicant came into the shop the next day and made inquiries as to how to use the watch but later agreed in cross-examination that he also asked to adjust the size of the watch.  He said that he notified the police after the applicant came into the shop and tried to keep in there but he left, leaving the watch and his bicycle behind.  He then chased after him.  Nothing was raised with him as to whether the applicant left the shop with the description cards and the extra links, and I fail to see how this matter impugns the evidence of Mr Chung.  I do not see how it can be reasonably argued that the matter of the extra links in some way undermined the evidence of Mr Chung.  The best that Mr Ross could say on the matter when queried about it was that it supported the evidence of the applicant who said he did not have the cards and extra links on him at the time of his arrest.  As already noted, this was an issue before the judge who explained in his reasons that he accepted the evidence of the police officer.

20.As Mr Eddie Sean, for the respondent, also points out, Mr Chung gave cogent evidence that the applicant was the person who purchased the three watches in the evening of 24 January 2016 which the judge accepted.

21.It follows from what I have said that I do not consider the grounds advanced by Mr Ross to be reasonably arguable.  I therefore refuse the application for leave to appeal against conviction.

22.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Eddie Sean, SADPP of the Department of Justice, for the respondent

Mr Phillip Ross, instructed by B Manek & Co, assigned by the Legal Aid Department, for the applicant