HKSAR v. Baljit Singh

CACC 186/2018

[2019] HKCA 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 186 OF 2018

(ON APPEAL FROM DCCC NOS 105 & 789 OF 2017)

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Before: Hon Zervos JA in Court

Date of Hearing: 5 June 2019

Date of Judgment: 5 June 2019

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J U D G M E N T

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1.The applicant stood trial before District Court Judge Casewell (the judge) on a single charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210 (Charge 1), and a single charge of failing to surrender to custody, contrary to section 9L (1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charge 2).  He pleaded guilty to Charge 2, but proceeded to trial on Charge 1, having entered a plea of not guilty.  He was jointly charged for the robbery offence together with Jagdish Singh, who pleaded guilty to the offence and gave evidence for the prosecution at the applicant’s trial.  He was PW8 at trial and that is how he will be referred to in this judgment.

2.On 28 May 2018, the judge convicted the applicant of the robbery offence, and on 15 June 2018, sentenced him to 42 months’ imprisonment.  The applicant filed appeal papers on 10 July 2018, applying for leave to appeal against his conviction only.

3.On 13 October 2016, at about 5 am, PW8 robbed a lone woman of her handbag as she was walking home after work along Tai Nan Street, Sham Shui Po.  Having pleaded guilty to the robbery offence, PW8 testified at the trial of the applicant.  He said that they both lived in a flat on the first floor at 190 Tai Nan Street and that he had received a telephone call from the applicant at about 4 am, who told him that he was following a target to rob.  The applicant asked him to join him as soon as possible.  He went to Tai Nan Street and it was arranged between them that he would rob the woman and the applicant would act as a lookout.  He then robbed the woman of her handbag, which he hid under a parked truck as directed by the applicant.  They went to a nearby playground and the applicant gave him some clothes to change into.  They returned to Tai Nan Street and retrieved the handbag.  They went to the rooftop of the building where they lived and checked the contents of the handbag.  After distributing the contents between them, the applicant threw away the handbag on the rear staircase of the building. 

4.CCTV footage initially shows the applicant walking behind the woman.  A little while later, PW8 is walking behind the same woman while the applicant crosses the road to the other side of the street. PW8 then runs towards the woman, struggling with her as he grabs her handbag and runs off.  Some time later they are together in Tai Nan Street and by then PW8 is wearing different clothing.  They come together again in Tai Nan Street and PW8 retrieves the handbag from under the parked truck.  PW8 is wearing a different top.  They separately go into the building of their residence at 190 Tai Nan Street.

5.The telephone call records of PW8 and the applicant show that there were 10 calls between them from 4:37 am to 5:04 am.

6.There is essentially one ground of appeal that complains that the judge failed to properly consider or evaluate the evidence by not resolving five material discrepancies arising from the evidence of PW8. They are as follows:

(a)   PW8 testified that he started to live with the applicant at 190 Tai Nan Street since March 2015.  It is complained that this was inconsistent with what he said in his video recorded interview and the address shown on his Form 8 recognizance.  The judge addressed this point and held that it was not crucial to the main issue because they were living there when the robbery occurred.  See Reasons for Verdict, paragraphs 15 and 24. 

(b)   PW8 testified that the applicant called him at 4 am and told him that he was following a target to rob.  It is complained that the evidence of the victim was that she left the club where she worked at some time around 5 am and the telephone records show that the last call PW8 received from the applicant prior to the robbery was made at 4:37 am.  The judge noted that the telephone records of PW8 and the applicant showed that between 4:31 am and 5:38 am there were 10 calls between them, including at 4:37 am when PW8 telephoned the applicant and at 5:04 am, shortly before the robbery, when the applicant telephoned PW8.  The judge noted that PW8’s recollection of the telephone calls was flawed, but emphasised that the telephone calls evidenced that they were communicating with each other at around the time of the robbery, and when they were in close proximity to each other.  See Reasons for Verdict, paragraphs 5 and 22.

(c)   PW8 testified that he and the applicant spoke continuously for 2 to 3 minutes on the telephone.  It is complained that there is no such record of a conversation that lasted this long between them, except for the last call at 4:37 am which lasted for 33 seconds.  As noted, the judge acknowledged that PW8’s recollection of the telephone calls was flawed but he placed reliance on the 10 calls between them at around the time of the robbery. See Reasons for Verdict, paragraphs 5 and 22.  From the admitted telephone records, it appears there was also a telephone conversation between them at 5:04 am that lasted 112 seconds.

(d)   The CCTV footage of the incident and the aftermath did not conclusively establish the applicant’s involvement in the robbery.  The judge found that the CCTV recordings and the telephone records provided independent support for the testimony of PW8, after having carefully analysed the CCTV footage.  See Reasons for Verdict, paragraphs 3 and 4, 16 to 20, and 25.

(e)   The applicant had arranged a change of clothing for PW8.  It is complained that PW8’s evidence about changing his clothes was inconsistent with the CCTV footage.  It is argued that PW8 had testified that he changed into a white top but the CCTV footage of his return to his home shows that he was wearing a dark top.  It is complained that the judge wrongly stated that it was not clear from the CCTV footage whether the clothing was light or dark. The judge addressed this issue and noted that PW8 had changed his clothes when he was seen back with the applicant and that this was consistent with PW8’s evidence.  See Reasons for Verdict, paragraph 23.

7.The issue before the judge was whether PW8 acted alone in committing the robbery or whether he did the robbery together with the applicant, who acted as a lookout.  The judge in his reasons for verdict noted PW8 was a tainted witness and that his evidence was to be approached with a great deal of caution.  He noted that PW8 had lied to the police by denying his guilt in his video recorded interview, and that the applicant had named PW8 as the robber and therefore had a motive to lie in order to take revenge against him. 

8.The applicant did not give or call evidence at his trial and the defence was focused on attacking the credibility of PW8.  It is therefore not surprising that the judge in his reasons for verdict carefully analysed and evaluated the evidence of PW8.  He was fully aware of the defence criticisms of various aspects of PW8’s evidence and that there were areas of his evidence that were not consistent with other evidence.

9.The evidential matters now being raised by the applicant in this application were also raised before the judge, and the reason why they are being repeated is that the applicant does not accept the judge’s view or conclusion on these matters. 

10.The judge appropriately considered these and other matters, and in my view, they did not preclude the judge from finding on the evidence that the applicant committed the robbery together with PW8.  The applicant was captured on CCTV footage prior to the robbery when the victim was being followed by the applicant, during the robbery when PW8 grabbed the handbag of the victim and afterwards when PW8 recovered the handbag that had been hidden under the parked truck.  As the judge said: “The evidence from the recording is compelling evidence for a narrative that PW8 and the defendant were acting together.”  There were also 10 call records between the two of them from 4:31 am to 5:38 am.  As pointed out by Mr Bobby Cheung, for the respondent, neither of them made calls to anyone else during this period.

11.I have watched the CCTV footage, and in my view, the CCTV footage and the call records provide compelling evidence against the applicant of jointly carrying out this robbery with PW8.

12.The judge was clearly directed to the issue of PW8’s credibility and carefully evaluated his evidence.  Having noted the points for and against PW8 as a witness of credit, the judge went on to conclude:

“25. Having considered all the evidence and the submissions and perused the CCTVs, I found that my overall decision was that PW8 could be relied upon when he said the defendant was his lookout. I find the CCTV recordings and phone records certainly provide independent support for this testimony. I notice the defendant’s statements in his own video recorded interview. I did not accept his denial contained therein, and I rejected his explanation of not being aware that PW8 would commit the robbery.”

13.The judge was fully entitled to conclude that the applicant was involved in the robbery as a lookout.  This is not a case in which the conclusion is against the weight of the evidence, nor is it one where the judge had not considered or evaluated the evidence properly.  There is no substance to this appeal against conviction.

14.It follows from what I have said that the application for leave to appeal against conviction is refused.

15.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 Bobby CHEUNG, SPP of the Department of Justice, for the respondent

Mr Trevor BEEL and Ms Priscilla LAU, instructed by Bar Free Legal Service Scheme, assigned by DLA, for the applicant