HKSAR v. Syed Rashid Aslam

DCCC 997/2018

[2019] HKDC 1119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 997 OF 2018

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REASONS FOR VERDICT

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Introduction

1.The defendant is charged with the offence of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210.  The prosecution says that on 10 August 2018, outside Ground Floor, Nos. 439-443 Shanghai Street, Mong Kok, the defendant robbed ISLAM MD-SHOHIDUL of one smartphone, one necklace and one ring.

2.At trial, the prosecution produced a set of Admitted Facts by virtue of section 65C of Cap. 221 as Exhibit P5.  Exhibits P1, P2, P3 and P4 were produced under Exhibit P5.  Exhibit P2 contained the video-recorded interview conducted with the defendant voluntarily under caution on 16 August 2018 (the “VRI”).  Exhibit P3 is the transcript of the VRI.

3.The prosecution also called the following prosecution witnesses:-

•   ISLAM MD-SHOHIDUL (“PW1”)

•   RAZZAK ABDUR (“PW2”)

•   DPC 11631 (“PW3”)

4.After I ruled a case to answer, the defendant elected to testify.  No other defence witness was called.

5.It was the defence case that although the defendant did converse with PW1 in the early hours on 10 August 2018 outside Nos. 439-443 Shanghai Street, it was because PW1 made a pouting face to the defendant’s girlfriend so much so that the defendant approached PW1 and told him (PW1) that he (the defendant) was going to call the police for PW1’s behavior.  As PW1 apologized, eventually the defendant did not call the police.  The defendant denied having told PW1 that he (the defendant) was a police officer, raised his open hand to PW1 as if he was going to slap PW1 on the face, or taken PW1’s mobile phone, necklace or ring. 

6.In analyzing the evidence of this case, I bear in mind that the burden of proof lies on the prosecution to prove the case beyond all reasonable doubt.

The prosecution’s case

7.PW1 is a Form 8 recognizance holder born in August 1984 in Bangladesh.  He came to Hong Kong in 2015 as a refugee.

8.At about 3:20 am on 10 August 2018, PW1 was standing outside the subject location waiting for his friend PW2 who was going to give PW1 some food and vegetables.  Whilst PW1 was standing outside the subject location waiting for PW2, he was smoking and chewing tobacco.  Soon after PW1 had spat on the pavement, the defendant approached PW1, told PW1 that he (the defendant) was a police officer, asked PW1 to show him (the defendant) PW1’s proof of identity and accused PW1 of blowing a kiss to his (the defendant’s) wife who was standing outside the supermarket across the street.  PW1 told the defendant that he did not have his proof of identity with him, and asked the defendant to go to his home so that he could show his proof of identity to the defendant.     

9.At that time, PW2 arrived.  PW1 told PW2 that the defendant had said that he was a police officer and wanted to see PW1’s proof of identity.  According to PW1, PW2 asked the defendant what the problem was.  The defendant told PW2 that PW1 had kissed his (the defendant’s) wife.  The defendant also told PW2 not to intervene, that it was their problem, that his team was coming and that PW2 should go away. PW2 then left the scene.

10.After PW2 had left, the defendant told PW1 to go home and bring his proof of identity back.  When PW1 was about to leave the scene and go home collect his proof of identity, the defendant stopped PW1 and said PW1 would not return to the scene once he had left.  The defendant asked PW1 to show him what PW1 had in his pocket.  PW1 told the defendant that he had a mobile phone with him.  The defendant asked PW1 to give him his mobile phone.  At first PW1 did not give his mobile phone to the defendant.  As the defendant looked angry and spoke foul language, PW1 complied.  The defendant took the mobile phone and kept it.  When PW1 asked to get his mobile phone back, the defendant said, “Nothing will happen to your phone.  Don’t worry.  It will be returned to you.” 

11.The defendant continued and said, “I can see something around your neck.  Is it your chain?  Just give it to me.”  When PW1 was reluctant to give his necklace to the defendant, the defendant raised his open hand gesturing that he was going to slap PW1 on the face.  The defendant also threatened that his team was coming and PW1 would be in trouble.  As PW1 was scared, he took off his necklace with a ring attached to it and gave them to the defendant.

12.The defendant took PW1’s necklace and ring, and told PW1 to go home and bring his proof of identity back to the scene.   

13.PW1 went home, took his Form 8 recognizance and returned to the scene.  It took him about 5 minutes to do so.  When PW1 returned to the scene, the defendant had disappeared.

14.Soon after PW1 returned to the scene, PW1’s two friends (one being PW2) came.  One of his friends (not PW2) called the police and made a report of the incident.

15.The defendant was arrested on 14 August 2018.  In the VRI, the defendant said inter alia:-

(i) he had met PW1 once or twice two to three weeks ago in Shanghai Street between Mong Kok and Yau Ma Tei (counters 149 to 157 of Exhibit P3);

(ii) on that occasion, the defendant said “Hi”, “Hello” to PW1;

(iii) at about 3:20 am on 10 August 2018, he and his girlfriend were going to do some shopping at Wellcome supermarket in Shanghai Street;

(iv) PW1 made a pouting face to his girlfriend twice;

(v) the defendant then approached PW1 and asked PW1 why he did that. PW1 then told the defendant that he had met the defendant a few days ago (counter 264 of Exhibit P3) (and two, three days ago: counter 328 of Exhibit P3), that he had made a mistake, that he was sorry and that he was drunk. The defendant also confirmed in that interview that he had seen PW1 two days ago (counters 291 and 308 of Exhibit P3);

(vi) soon afterwards, the defendant’s girlfriend finished shopping at Wellcome supermarket and went to him. PW1 also apologized to the defendant’s girlfriend;

(vii) the defendant then told PW1 that it was not like Bangladesh or Pakistan and that the police in Hong Kong would take action if one made a gesture to a girl like what PW1 did to the defendant’s girlfriend;

(viii) PW1 asked their permission to leave the scene, and then left;

(ix) except for the aforesaid account of what was conversed between PW1 and the defendant, nothing else was discussed (counters 389 and 474 of Exhibit P3);

(x) he had met PW1 twice, the first occasion was two, three weeks ago (counters 402 and 403 of Exhibit P3) (and a week and a half or two weeks: counter 410 of Exhibit P3), and the second occasion was on the early hours of 10 August 2018 when the incident took place;

(xi) he had not told PW1 that he was a police officer;

(xii) he had not taken PW1’s mobile phone, necklace or ring; and

(xiii) he had told PW1 that he could call the police when he had made that indecent gesture.

The defence case

16.In examination-in-chief, the defendant said inter alia:-

(i) at about 3:15 am on 10 August 2018, he and his girlfriend were going to go shopping at the Wellcome supermarket across the street from the subject location;

(ii) he saw PW1 making a pouting face to his girlfriend thrice;

(iii) the defendant concluded that PW1’s behavior was intentional, and so he approached PW1 and asked PW1 what his problem was;

(iv) when he was 1 to 2 feet away from PW1, he could smell alcohol from PW1 who could not stand steadily;

(v) the defendant asked where PW1 was from as PW1’s skin colour and facial features looked similar to the defendant’s. PW1 said he was from Bangladesh. PW1 also told the defendant that they had met 2 weeks ago when they greeted each other;

(vi) the defendant then told PW1 that PW1 had blew kisses to the defendant’s girlfriend two to three times and he did so deliberately;

(vii) PW1 then said he made a mistake, that he was drunk and asked the defendant for forgiveness;

(viii) the defendant then told PW1 that he was going to call the police;

(ix) PW1 asked the defendant not to call the police;

(x) at that juncture, PW2 arrived. After PW1 and PW2 had conversed in a language the defendant did not comprehend, PW2 asked the defendant to forgive PW1. The defendant told PW2 that he was going to call the police, that PW2 could stay if he wanted to stay, and that he could leave if he wanted to. PW2 then left the scene;

(xi) then the defendant’s girlfriend arrived. PW1 apologized to his girlfriend and asked for forgiveness. She forgave him. PW1 then asked to leave and then he left; and

(xii) the defendant denied having taken PW1’s mobile phone, necklace or ring.

17.In cross-examination, the defendant said inter alia that:-

(i) he obtained a Master’s degree in English literature in Pakistan before he came to Hong Kong in 2002;

(ii) when he and his girlfriend saw PW1 make the pouting face the second time, he was of the view that it was a police matter because doing such a thing in a public place was an indecent act;

(iii) when he wanted to call the police, his purpose was to inform the police that there was a drunk person doing an indecent act, and that the police should warn PW1;

(iv) when prosecuting counsel asked the defendant to demonstrate the act the defendant considered indecent, the defendant said it was an immoral act, that whoever faced that would definitely protest and complain about it, and any moral person would not bear that and would question the person who acted that way. After being reminded that he was asked to demonstrate the act, the defendant made a pouting face. He said in his judgment, it was indecent and immoral and should be reported to the police;

(v) he said he was going to call the police and his girlfriend was going to call the police too. They did not do so because PW1 was constantly apologizing, saying he had made a mistake and asking for forgiveness;

(vi) when he went over to PW1 in the early hours on 10 August 2018 at the subject location, PW1 told him that they had met each other two weeks ago;

(vii) he had said at the VRI that PW1 had on the occasion on 10 August 2018 told him that PW1 had said hi/hello to him;

(viii) when prosecuting counsel referred the defendant to counter 290 of Exhibit P3 (where the defendant confirmed that PW1 had met him two days ago), the defendant testified that PW1 had told him they had met a few days earlier; and

(ix) when prosecuting counsel asked the defendant whether the gesture made by PW1 would warrant police attention in the defendant’s own country, the defendant said in Pakistan, there was a punishment for it.

18.In re-examination, the defendant was referred to counter 264 of Exhibit P3.  The defendant said it was PW1 who told him that they met a few days ago.

Analysis of evidence

19.With regard to the defendant’s evidence, I have the following observations:-

(i) in the VRI, the number of days/weeks before the 10 August 2018 PW1 had met the defendant varied from:-

•   two days ago (counters 291 and 308 of Exhibit P3),

•   two, three days ago (counter 328 of Exhibit P3),

•   a few days ago (counter 264 of Exhibit P3),

•   one and a half weeks to two weeks ago (counter 410 of Exhibit P3) to

•   two to three weeks ago (counters 149 to 157, 402 and 403 of Exhibit P3).

The defendant’s account of what PW1 had said to him on the early morning of 10 August 2018 as to when they had first met was highly inconsistent;

(ii) during cross-examination, the defendant originally testified that PW1 had told him that they had met two weeks ago; but towards the end of cross-examination, he testified that PW1 had told him that they had met a few days ago. The defendant’s evidence of what PW1 had said as to when they had first met was inconsistent;

(iii) in the VRI, the defendant did not say he was going to call the police or he had told PW1 that he was going to call the police. According to the VRI, the reference to calling the police was only made in counter 346 of Exhibit P3 where the defendant said he had told PW1 that in Hong Kong, if someone made a pouting gesture to a girl, the police would take actions. The version the defendant gave when he testified in court was different – he testified that he had told PW1 that he was going to call the police; and

(iv) what the defendant said in the VRI, specifically counter 346 in Exhibit P3, was that unlike Bangladesh or Pakistan, in Hong Kong the police would take action against a person who made a pouting gesture to a girl. I am of the view that the defendant was saying in the VRI that unlike Hong Kong, in Bangladesh or Pakistan the police would not take action against a person who made a pouting gesture to a girl. What the defendant said in the VRI was different from what he testified during cross-examination that there was a punishment in Pakistan for making the pouting gesture.

I do not find the defendant credible or reliable. I refuse to accept his evidence.

20.Although I have refused to accept the defendant’s evidence, the prosecution still has the burden to prove the charge beyond all reasonable doubt.  In this connection, I have the following observations on the prosecution’s evidence:-

(i) PW1’s omission to mention in his 1^st witness statement made on the evening of 10 August 2018 in Mongkok Police Station (the “1^st WS”) about the defendant’s accusation of PW1 making the kissing gesture is immaterial. After all, PW1 was able to tell that accusation in his 2^nd witness statement made on 16 August 2018 (the “2^nd WS”). The defendant also testified that there was such an episode when he questioned PW1 of making a kissing gesture;

(ii) for the same reason as above, PW1’s omission to mention the involvement of PW2 in his 1^st WS and 2^nd WS is immaterial;

(iii) on the topic of the 1^st WS, PW1 was adamant that he did not go to Mongkok Police Station on 10 August 2018, and that the first witness statement he made at the police station was 3 to 4 days after the incident; but he confirmed that he did make the 1^st WS. However, it was stated in the 1^st WS that it was made at 2025 hours on 10 August 2018 in Mongkok Police Station. PW3 also confirmed that PW1 made the 1^st WS at 2025 hours on 10 August 2018 in Mongkok Police Station;

(iv) when asked by the defence counsel why there was no reference to the accusation of kissing in the 1^st WS, PW1 originally said that he had told everything to the interpreter and it was their mistake of not recording it in the 1^st WS. However, later on in cross-examination, PW1 said he had forgotten to mention the accusation of kissing when he gave the 1^st WS because he could not communicate in English. That was different from his original evidence that he had told everything. Further, as there was the assistance of an interpreter when the 1^st WS was being taken, I find it hard to accept PW1’s explanation that he had forgotten to mention the accusation of kissing because he could not communicate in English;

(v) PW1 also testified that when giving the 1^st WS, he was not able to tell the accusation of kissing because the statement taker only asked him questions without giving him the chance to narrate what happened at the scene at the material time. However, PW1’s version was different from that of PW3’s who testified that he had first asked PW1 to tell the entire course of incident before he asked PW1 questions for clarifications;

(vi) PW1 testified that the defendant did not search him throughout the encounter at the material time. When asked by the defence counsel why he used the term “search” in his witness statement (also see counters 105 to 107 of Exhibit P3 where the police said to the defendant that the defendant had conducted a search on PW1), PW1 testified that he used the term “search” to mean the defendant had asked him what he had in his pockets. I find it inaccurate, if not exaggerating, to use the term “search” to mean asking what one has in one’s pockets;

(vii) during cross-examination on the first day of trial, both the 1^st WS and the 2^nd WS were presented to PW1 but PW1 insisted that there was another witness statement which contained the full account of the incident. Upon re-examination on the first day of trial, despite the 1^st WS and 2^nd WS were in front of him, he still said he was not sure which witness statement contained the full account of the incident. PW1 was therefore asked to go home and find the witness statement which contained the full account of the incident. When PW1 came back on the second day of trial, he testified that the full account of the incident was contained in the 2^nd WS; and

(viii) during re-examination on the second day of trial when he was asked why he forgot to mention the accusation of kissing in the 1^st WS, PW1 said it took time for him to understand English. However, it was not in dispute that there was an interpreter assisting the taking of the 1^st WS. I find it hard to accept PW1’s explanation that it took time to understand English – there was no need for him to understand English as there was an interpreter assisting him.

The accumulation of the aforesaid observations on PW1’s testimony makes the quality of PW1’s evidence unsatisfactory. I have difficulty to rely on his evidence. PW1 is the only witness who could tell whether the defendant raised his open hand gesturing that he was going to slap PW1 on the face and whether the defendant took away PW1’s mobile phone, necklace and ring. Without being able to rely on PW1’s evidence, I am unable to find beyond all reasonable doubt that the defendant committed the present offence.

Findings

21.In the circumstances, the defendant is acquitted.