HKSAR v. Ali Hamza

DCCC 285/2018

[2019] HKDC 1550

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 285 OF 2018

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REASONS FOR VERDICT

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1.The defendant pleaded not guilty to one charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

2.The prosecution’s allegation was that on 30 December 2017, the defendant attempted to rob Miss Chan Rattanaporn (“PW1”) inside the premises located at Flat C, M/F, No 560 Fuk Wah Street, Cheung Sha Wan, Kowloon (“the premises”).

3.The PW1’s credibility was at issue.  The defence also challenged the admissibility of the alleged verbal statements under caution and the video-recorded interview (“the VRI”) on the grounds of voluntariness and fairness.  Alternative procedure was adopted.

Prosecution case

4.The prosecution called 6 prosecution witnesses and produced in evidence Exhibits P1 to P22 to substantiate their case.

5.In summary, the prosecution case is that, at all material times, PW1 occupied the premises alone and operated therein as a sex worker.  On the material day, she started to work at 1200 hours and turned the red light on.  Around 1500 hours on the same day, a male pressed the door-bell of the premises.  She opened the door and told the male to wait as she needed to use the toilet first.

6.Later, the said male returned to press her door-bell again.  When she was about to open the door, he pushed her in and closed the door.  He then went to the toilet to see if anybody was inside.  After that, he walked back to stop in front of the door and took out a knife from the rear right pocket of his pants.  He pointed the knife towards PW1’s tummy and then said to her “Rob” in Cantonese but not in a clear accent.  PW1 was scared and replied that she had no money as she just started work.  She also told the said male that there was CCTV in the premises recording his face and that she had an appointment with a customer who was on his way and would soon arrive.  The said male then quickly looked around the room and opened the door to leave the premises. He ran towards the back entrance of the building leading to Kim Shin Lane.  PW1 also went out of the premises and shouted “Rob” in Cantonese.  She knocked on the door of the opposite room to ask her friend to call the police.

7.Police investigation led to the arrest of the defendant at Lo Wu Control Point on 18 January 2018.  At about 1920 hours on the same day, DPC 13726 (“PW2”) together with DSGT 46135 (“PW4”), DPC 16579 and DSPC 58470 (“PW3”), arrived at Ta Kwu Leng Police Station.  PW2 and PW3 conducted an investigation with the defendant.  Although the defendant was a Pakistani, PW2 spoke to him in Cantonese as the defendant was able to speak fluent Cantonese.  A Pol 153 notice [Exhibit P8] in Chinese was issued and explained to the defendant.  PW2 then cautioned the defendant for the present offence. The defendant under caution said words to the effect that he did not commit robbery on the day in question, but he had taken a cutter and gone to the premises, and had threatened PW1 with it for a free hand-job.

8.Later on the same day, the defendant was further cautioned for the turban and the black thick rimmed lens glasses seized from his cross-shoulder bag, which were suspected to be related to the present case.  Under caution, the defendant said words to the effect that he wore both the turban and glasses to commit the crime.

9.The defendant was subsequently taken to Cheung Sha Wan Police Station.  At about 2317 hours on the same day, another Pol 153 notice was issued and explained to the defendant.  Between 2330 hours on 18 January 2018 and 0058 hours on 19 January 2018, PW2 conducted a video recorded interview with the defendant.  During the VRI, the defendant stated, inter alia, that (i) the purpose of going to the premises was to commit robbery; (ii) he was unsuccessful in committing the robbery; and (iii) the cutter he used in the robbery was discarded by him after the robbery.

10.PW4, DPC 14132 (“PW5”) and DPC 11143 (“PW6”) were tendered for cross-examination.

11.No threat, violence and/or inducement was used by the police witnesses to obtain the notices to person in custody, the verbal cautioned statements and the VRI from the defendant.

12.At the close of the prosecution case on special issue, I found the defendant had a case to answer.

Defence case on special issue

13.The defendant elected to give evidence.  Mr ALI Awais, the defendant’s younger brother (“DW2”), was also called to give evidence on the defendant’s behalf.  Exhibits D1 to D11b were produced in evidence.

14.Overall speaking, the defendant’s evidence was consistent with the grounds of objection.  In brief, apart from telling the police that he came to Hong Kong at the age of 1 and received education from kindergarten to secondary level; Chinese was taught in school; he did not want to say anything as he only wanted to say it before a judge; the defendant had not uttered the verbal statements under caution as alleged.  His mother tongue was Urdu and Punjabi.  He had told the police that he could not speak much Cantonese. The police failed to obtain his consent to use Cantonese/Chinese for the purpose of the statement taking and interview. Nor was he given the right to elect the use of language.  No interpreter was offered or provided to him.  He did not understand the Chinese version of Pol 153 notices and was not provided with the English version.  He was coached what to say and to draw in the VRI. The notebook, Pol 153 notices and the admissions in the VRI were obtained from him, as a result of threat, violence and inducement of the police witnesses.

15.Documentary exhibits were produced to show the defendant’s lack of proficiency in Chinese.  He studied a 4‑year Chinese course which was designed for foreigners in Zhuhai.  Only the basic foundation of Chinese i.e., Pinyin and four tones, was taught and the medium of instruction was Mandarin.  He was not taught how to write Chinese characters.  On the day of arrest, he did not have sufficient ability to read, write and understand Chinese including the documents in question.

16.DW2’s evidence mainly showed that on 7 March 2018 he phoned the police officer in charge of the case and was told that the defendant could retake his statement if he (the defendant) wrote a letter to make such a request.  On the same day, he received and delivered two letters written by the defendant to the police requesting for the retaking of his statement and the release of case related documents to his family.  DW2 and his family met Dr Yiu Choi Ching when they visited the defendant at the Lai Chi Kok Reception Centre.  With the help of Dr Yiu Choi Ching, DW2 got the contact phone number of the police.

17.On 9 March 2018, DW2 together with Dr Yiu, the defendant’s mother and school principal went to the Cheung Sha Wan Police Station and asked about the retaking of the defendant’s statement.  However, the police refused to retake the defendant’s statement.  DW2 used his mobile phone to record the conversation between the police officer in charge of the case and Dr Yiu.

Ruling on the admissibility

18.The defendant has a clear record.  At that stage, I bore in mind the good character directions in relation to both credibility and propensity: Tang Siu Man v HKSAR (1997-98) 1 HKCFAR 107.  The burden of proof was on the prosecution to prove beyond reasonable doubt that the alleged verbal statements under caution, if made, and the statements in the VRI were given by the defendant voluntarily and obtained fairly.

19.After careful consideration of the evidence and submissions, I found PW2 to PW6 credible and reliable witnesses.  Each of them had told the truth to the court.

20.I did not find the defendant’s evidence credible, particularly, his allegation that the verbal statements made and recorded in Exhibit P9 were made up by PW2.  Given the very nature of the present case being an attempted robbery, I found that there was simply no logic for the police to make up such a statement which had the effects of the defendant denying the robbery and complicating their investigation.

21.As to DW2’s evidence, I also did not find it credible. When he was cross examined as to why the date of Exhibits D4 and D6, i.e. 6 March 2018, predated the police instruction to him on 7 March 2018 about the retaking of the defendant’s statement, he explained that the police had mentioned the said instruction to his mother.  He even contradicted his evidence-in-chief denying that the police had mentioned the said instruction to him on 7 March 2018.

22.Given that the defendant was shown the still photos of the CCTV footages at the VRI on 18 January 2018, I found it unbelievable that on 19 March 2018 the police could have told Dr Yiu that they had not yet viewed the CCTV evidence.  DW2 was simply telling lies about the audio recording.

23.Despite my rejection of the defendant’s evidence as well as that of DW2, no adverse inference could be drawn against the defendant as the burden of proof rested on the prosecution.

24.I found that no one had assaulted, induced and/or threatened the defendant to cooperate.  As the defendant was able to communicate with PW2 in Cantonese and told PW2 that he did not need an interpreter, I find it reasonable and fair in the circumstances for PW2 to issue Pol 153 notices and to conduct the taking of verbal statements under caution and the VRI in Cantonese.

25.I ruled that the alleged verbal statements including the notebook entries, Pol 153 notices and the subsequent VRI were made voluntarily.  I did not find any reason as to unfairness for me to exercise discretion to exclude them.  They were formally admitted into evidence as part of the prosecution case.

General issue

26.The prosecution formally closed their case.  I found the defendant had a case to answer in respect of the charge against him.

27.The defendant elected to give evidence.  No other defence witness was called.

28.His case is that, on the material day, the defendant used his mobile phone to do an online search for a massage and sex service.  He got the address of the premises via 161sex.com.  He picked PW1 because of the profile information, namely that, she was 27 years old, her charges were fair and the premises were close to his home.

29.At about 1430 hours, he pressed the door-bell of the premises.  PW1 opened the door and they had a conversation about her services and charges.  There was a red light at the doorway. As it was quite dark and the defendant could not see PW1’s face clearly.  Since the defendant had not yet made up his mind, PW1 closed the door.  The defendant pressed PW1’s door-bell again to ask her if there was another sex worker in the opposite room.  After asking the sex worker in the opposite room about her services and charges, the defendant decided to engage PW1’s service and pressed PW1’s door-bell again as he had expectations of her based on the website information.  However, PW1 gave no response.  The defendant then left and went to look for other red light places.

30.At about 1500 hours, the defendant returned to press PW1’s door-bell again as he could not find any other sex worker like her.  PW1 opened the door to let the defendant in, told him to take off his clothes and take a shower.  After looking at PW1 carefully, the defendant found that she was not the girl as shown on the website and confronted her with that.  PW1 confirmed herself being the girl in question.  The defendant did not accept it and complained that she was too old and over 40 years of age. He also told her that he did not need her service.  However, PW1 insisted on the defendant paying her $300 as he had already entered the premises.  The defendant refused to do so and argued why he should pay her since he had not yet undressed and been served.  PW1 was furious and told the defendant that he would be in trouble if he refused to pay.  The defendant then offered to pay her $100 as compensation for coming into the premises.  PW1 rejected the offer.  Further arguments ensued between them.  PW1 made noises and also tried to call her boss.  The defendant got scared that her boss might come to beat him up and he would have big trouble with his family if the police were involved and the matter was exposed.  The defendant was also in fear as visiting a one-woman brothel was a grave sin in his religion and he held the belief that he was below the legal age of 21 for visiting such a place.  He was going to leave $100 on PW1’s bed before leaving; however, as he was very frightened, he just ran away without leaving any money behind.

Analysis of evidence

31.The defendant has a clear record.  In reaching my verdict, I have given myself the good character directions regarding credibility and propensity.  I also bear in mind that the burden is on the prosecution to prove all the elements of the offence beyond reasonable doubt throughout.

32.The prosecution case relies on PW1’s evidence as well as the defendant’s verbal admissions under caution and the VRI.

33.I have carefully considered all the evidence and submissions including reviewing all the evidence on the special issues and the submissions made by parties.

34.Regarding the verbal statements under caution and the VRI, I do not find that I can place weight on them for the following reasons: -

- as revealed in the defendant’s evidence, he attended a government international primary school and the Islamic Kasim Tuet Memorial College, which was also a type of international school for primary and secondary education respectively. The medium of instructions in both schools was English. In 2014, he took the Pearson Edexcel GCSE Chinese exam for non-Chinese students and answered the exam questions in English. However, he failed it. In my view, the said evidence appeared to be consistent with his answer in the VRI concerning the education he received in Hong Kong in terms of Chinese being primary 4 level [Counter 56];

- he joined the Chinese course in Zhuhai in September 2016 as he needed to improve his Chinese to meet the entry requirement of the police force. The course was designed for foreigners. By the time of the arrest on 18 January 2018, he had learned to use Pinyin to read the tones and identify simple Chinese words but not how to write Chinese characters. His Chinese had improved in terms of speaking in both Mandarin and Cantonese but not reading and writing. Undoubtedly, Cantonese and Mandarin differ in a number of aspects, such as style of characters (traditional for Cantonese and simplified for Mandarin), different pronunciations, sentence structure and so forth. Given the nature and substance of the course in Zhuhai being Mandarin focused and that by the time of the arrest the defendant had only completed the first year foundation course, I do not find that his high scores in Chinese characters, which was one of the subjects of the course, can serve as a reliable indicator to reflect his Cantonese ability. Nor do I consider his high scores to contradict his answer in the VRI that his Chinese was primary 4 level;

- since his Chinese was primary 4 level and he would copy words out as a leisure activity at night [Counter 84], it is therefore in my view not unusual for him to have the ability to write some Chinese words, such as copying the declaration onto PW2’s notebook;

- However, PW2’s evidence was that the defendant expressed his ability to speak, listen and write Chinese as he had received education here in Hong Kong from kindergarten level to secondary level and Chinese had been taught at school. The said evidence appeared to suggest that the defendant’s Chinese was senior secondary level, which is clearly inconsistent with his answer that his Chinese was primary 4 level. In my view, the difference between the two levels, i.e., primary 4 level and the senior secondary level, is significant and material. Even though the defendant appeared to be speaking fluent Cantonese and did not require an interpreter, I find that when the said inconsistency came to light, PW2 should have made clarifications and/or further enquiries with the defendant in this regard. Without such clarifications and/or enquiries, I have serious doubts if his Chinese/Cantonese ability including understanding, reading and writing, was sufficient and/or proficient;

- on the other hand, even though the defendant appeared to be able to speak some slang terms, I also have doubts as to whether his Cantonese ability was sufficient and/or proficient for him to properly and/or fully understand the questions put to him and to properly and/or fully express himself in his answers. For example: (i) he had difficulty in describing the level of education he had attained in Hong Kong i.e., secondary school, in simple Cantonese terms, which is evidenced by his answer “Er the middle level, that is, not so high (or) not so low, that is normal” [Counter 64]; (ii) when the line of questioning was clearly about the turban and the glasses, he gave a totally unrelated answer concerning the cutter [Counters 437 to 442]; (iii) he used “the person hurt” to refer to the victim [Counter 586]; (iv) Exhibit D2 showed that his bank balance was 206,450.61 for September 2017 and at the time of the arrest he had personal belongings at a total worth of about $50,000. The said evidence does not tally with his answers at the VRI that he was a bankrupt and had no money;

- further, as rightly pointed out by the defence, PW1’s account of the incident differed from the admissions made by the defendant. They differ in many material aspects, such as there was a bargain over the charges of PW1’s service before the defendant entered the premises; a conversation took place between them regarding the defendant’s compliment on her beauty, PW1’s comment about the defendant being weird and her insistence on payment before service; the words uttered by the defendant during the robbery; the cutter was just shown and put away but not used by the defendant. The said differences could not, in my view, be reconciled.

- as analyzed above, the evidence as it stands cannot dispel my concerns over the defendant’s Cantonese ability and lack of proficiency in Chinese/Cantonese and I do not consider the admissions made by the defendant reliable.

35.I do not find PW1’s evidence credible, particularly, in the following material aspects: -

- her evidence-in-chief that she was about to open the door, the Middle East guy pushed the door, pushed her in and closed the door was clearly inconsistent with the CCTV footage which showed the defendant entered the premises with his hands in his trousers pockets. However, under cross-examination, when confronted with the relevant CCTV footage, she changed her evidence and said words to the effect that she opened the door widely and the Middle East guy pushed the door as he entered the room;

- she initially denied that the Middle East guy had asked her whether the sex worker in the room opposite to hers was available. After viewing the CCTV footage in which the defendant did a thumbs up gesture, she insisted that she did not know the meaning of the gesture as at the time she was using the toilet and opened the door slightly. However, upon further cross examination she changed her evidence and agreed that the defendant had asked her about the availability of her neighbour sex worker;

- PW1 confirmed that she had paid to advertise online on 161sex.com and Exhibit D1 was her advertisement. On the material day, she was 44 years old. When confronted with the fact that her age as advertised was 17 years younger than her actual age, she denied any knowledge of it and claimed that she never checked the details of the information stated in the advertisement. She exercised her right against self-incrimination and refused to answer questions as to how long she had been posting that type of advertisement and whether all other personal details stated in the advertisement, except the aforementioned issue of age, were accurate. While no adverse inference can be drawn against her for exercising her right against self-incrimination, I am not convinced that she had not checked and had no knowledge of her profile information as stated in the advertisement since this would have a direct impact on her business as a sex worker including clientele especially she had to spend money on the advertisement;

- when the defence cross examined her about her criminal record, she said she could not remember. It is undisputed that she committed a criminal offence of soliciting for an immoral purpose in 1997. Given the nature of her occupation as a sex worker, albeit not illegal, being similar to that of her criminal conviction in terms of providing sex service, I find it doubtful if she was really unable to remember her criminal record;

- If the defendant did point a knife towards her tummy and she was therefore frightened, I found it unreasonable for her to choose to quickly go out of the premises as soon as the defendant ran out, instead of closing the door for her own safety and to calm herself down before seeking help.

36.As to the defendant, I also do not find his evidence credible.  For example: I note that PW1’s face was not shown in the advertisement Exhibit D1.  Therefore, based on Exhibit D1, the defendant could not have any idea as to what “Carmen” looked like.  Given that a yellow greenish paper on which the name Carmen was written was stuck on the door of the premises, the defendant should, in my view, have been under the impression that he was dealing with Carmen.  Therefore, even if PW1 turned out to be much older than he expected, the first question that came to his mind would naturally, in my view, have been directed at her age, whether she was lying about her age, and not her identity.

37.The fact that the defendant could run away showed that he could leave the premises freely.  Therefore, I see no reason why he chose to stay in the premises and argue with PW1 especially after PW1’s rejection of his offer of $100 payment.

38.No adverse inference can be drawn against the defendant for my rejection of his evidence, as the burden of proof is on the prosecution.

39.In light of my above analysis, I am not satisfied that the prosecution have proved their case to the requisite standard.

40.I therefore acquit the defendant of the charge.