HKSAR v. Dost Imran

CACC 106/2021

[2022] HKCA 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 106 OF 2021

(ON APPEAL FROM DCCC NO 492 OF 2020)

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BETWEEN

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Before:  Hon Macrae VP in Court

Date of Hearing:  25 May 2022

Date of Judgment:  25 May 2022

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J U D G M E N T

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1.The applicant was convicted after trial on 30 April 2021 before HH Judge Casewell (“the judge”)  in the District Court of one count of robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and was sentenced to 5 years and 3 months’ imprisonment. He filed a Notice of Application for leave to appeal against conviction, which is dated 7 May 2021, on 14 May 2021.

The prosecution case

2.The prosecution case relied principally on the evidence of PW1, who was a 20-year old Punjabi-speaking Hong Kong resident.  Between 5:30 and 8 pm on 26 December 2019, which was a public holiday, he was together drinking with some fellow Asians, which included the applicant, near Exit B2 of Mong Kok MTR station.  PW1 said this was the first occasion he had met the applicant (although this was disputed by the applicant). 

3.At about 8 pm, the applicant, PW1 and some other men set off for Tai Mo Shan Country Park by car to continue drinking.  However, when PW1 later said he wanted to leave, the applicant and another man suddenly took out cutters, threatened PW1 and asked for his bag.  PW1 complied and gave them the items, which are particularised in the indictment[1].  He was assaulted and sustained injuries, which are shown in photographs produced by way of Admitted Facts[2]. The three men then left the scene by car, whereas PW1 walked down to Tsuen Wan police station to report the robbery.  In the small hours of 27 December 2019, PW1 made a police witness statement, in which he gave what the judge termed a “generic description” of the robbers (which the defence said was inconsistent with PW1’s subsequent statements).

4.PW1 testified that in the course of his conversation with the applicant that evening, the applicant had seen photographs on PW1’s telephone and said he knew one of the men depicted, who was called “Roop”.  Accordingly, after the robbery, PW1 communicated with Roop to try and secure his help in getting back some of his stolen property.  PW1 was thereby able to recover part of the stolen items through an intermediary the same evening.  (The applicant complained that PW1 never mentioned Roop in his statements and only told police about the recovery of the stolen items on 2 May 2020).

5.On 1 May 2020, PW1 saw the applicant again at Mong Kok MTR station, stopped him and held him there until police arrived.  The applicant was arrested and remained silent under caution.  PW1 gave another police statement on 2 May 2020 (which contained a further description of the robbers).

The defence case

6.The applicant elected to testify and called his wife and his cousin as defence witnesses.  The applicant gave evidence that he and PW1 had been friends since 2018 and often socialised together.  He admitted that on 26 December 2019, he had met with PW1 at a garden near exit B2 of Mong Kok MTR station and had been drinking there.  However, he left at about 6:30 pm and returned home to be with his wife and child.  PW1 owed him some money, which he refused to repay.  He had lent PW1 about HK$2,000 in January 2020 and HK$5,000 in 2019.  On 1 May 2000, PW1 asked him for a further $500.  The applicant refused and was assaulted by PW1.  They both called police.  The police arrived and the applicant was arrested.

7.His wife testified that the applicant returned home between 6 and 7 pm on 26 December 2019 and did not go out again that evening.  She knew PW1 had asked the applicant for money.

8.The applicant’s cousin testified that PW1 and the applicant were friends and often socialised together; and that he was present as a witness when the applicant lent HK$5,000 to PW1.

Reasons for verdict

9.The judge accepted the evidence of PW1, but rejected the evidence of the applicant, his wife and his cousin[3]. 

10.In accepting PW1’s evidence, the judge considered the attack on PW1’s credibility[4] but found that: (i)  PW1’s initial generic description of the robbers was “not necessarily inconsistent” with his subsequent more detailed description[5]; (ii)  PW1 was a civilian witness, and the fact that PW1 had not told the police earlier about Roop or the return of some of the proceeds of the crime did not undermine PW1’s credibility[6]; and (iii)  PW1’s identification of the applicant was more in the nature of a recognition, since they had spent a long time together that evening, which was not disputed by the applicant[7].

11.In rejecting the evidence of the applicant, his wife and his cousin, the judge found that there was no good reason for the applicant to have loaned money to PW1 and that the defence case was “a contrived story”[8]. The evidence of the wife and cousin was “basically a fabrication to assist their relative”[9]. The judge found[10]:

“The defendant is a Form 8 asylum seeker reliant on money from the government and occasionally (it)  would appear, money from home. He simply would not have the means, the desire to extend loans to a working Hong Kong resident. It simply was not a rational proposition that the defendant would have extended any loans to PW1.”

The applicant’s homemade grounds of appeal 

12.The applicant has complained of several matters in his grounds of appeal[11] and written submissions[12], which the respondent has categorised as Issues 1 to 5.  I shall adopt the same categorisation.

(1)  The judge failed to consider the inherent inconsistencies in the evidence of PW1.  In particular, PW1’s descriptions of the robbers did not correspond to the profile of the applicant; moreover, PW1 only identified the applicant 5 months after the offence (“Issue 1”). 

(2)  The prosecution failed to prove the alleged robbery had taken take place at the time and location alleged, and there was no independent evidence, such as CCTV, to link the applicant with the offence (“Issue 2”).

(3)  PW1 was an unreliable witness; for example, he failed to report to the police the recovery of the stolen items and the existence of a mutual friend called Roop (“Issue 3”).

(4)  The judge did not adequately consider the defence case, including the evidence of the applicant’s wife and cousin (“Issue 4”).

(5)  The applicant repeated his assertion that he had known PW1 before the offence date (“Issue 5”).

The applicant has this morning made further submissions to me that there was no sufficient evidence of either a robbery or a theft.  Moreover, there is nothing to say that this is not a fabrication by PW1, who is a fellow Asian.

The respondent’s submissions

13.Ms Human Lam, on behalf of the respondent, has submitted that the applicant is in effect asking the Court of Appeal to re-consider the evidence when these issues have already been considered by the judge, whose findings cannot be said to be plainly wrong so as to warrant the appellate court’s interference. 

14.In respect of Issues 1 and 3, the judge has already identified, considered and thoroughly dealt with the alleged inconsistencies and unreliability of PW1’s evidence, which has now simply been repeated[13].

15.As for Issues 4 and 5, the judge, who enjoyed the advantage of receiving the evidence first-hand, gave his analysis of the defence case as advanced in evidence.  Ms Lam submitted that the judge has carefully and properly evaluated that evidence and was entitled to accept the evidence of PW1 and reject the defence case.

16.As for Issue 2, it was not necessary to prove the time and place of the incident; while the absence of any CCTV evidence could not and did not in any way affect the safety of the conviction.

Consideration

17.The Issues raised by the applicant had in fact been canvassed by the applicant’s counsel at trial during his closing address[14]; and were all dealt with by the judge in his reasons for verdict. 

18.The case at trial was essentially the evidence of PW1 against that of the applicant (supported by his witnesses).  PW1 had given three witness statements on 27 December 2019, 2 May 2020 and 22 May 2020 respectively.  In relation to Issue 1, PW1 had described the robbers in the following terms:

(i)  In his 27 December 2019 statement: “three Pakistani males were involved, aged 30 to 50, they were strong-built, 1.7 metres in height, one wearing a hoodie in grey and two wearing shirts, other details unknown”[15];

(ii)  In his 2 May 2020 statement: “three men, one of the defendant(s)  as 30 years, thin, wearing a t-shirt, long pants, 1.7 metres tall, short black hair”[16] (Emphasis added).

19.The differences in the two descriptions were plainly not so serious as to render PW1’s evidence unreliable and not credible.  In any event, the applicant admitted in court that he had socialised and drunk with PW1 that evening in Mong Kok, even though he disputed what subsequently took place in Tai Mo Shan.  In that context, the judge’s reliance on PW1’s identification of the applicant cannot be said to be plainly wrong.

20.In relation to Issue 2, it was never the defence position that the robbery did not take place.  As noted by the judge[17]:

“It is not in dispute in this case that PW1’s description of a robbery on the evening on 26 December, if accepted, would constitute the crime of robbery. The defendant himself says he is not in a position to dispute that a robbery occurred because he said he was not there. His case is if he was identified as a participant in that robbery, then identification must be, at minimum, a misidentification.”

21.In relation to Issue 3, despite the fact that PW1 did not mention Roop in his witness statements, he did tell the police in his 2 and 22 May 2020 statements that he had recovered some of the stolen properties through an intermediary in the evening of 27 December 2019.  When PW1 gave his first statement, the stolen properties had not yet, of course, been returned to him. 

22.In relation to Issues 4 and 5, the judge fully explained his reasons for rejecting the defence case[18], which cannot reasonably be shown to be wrong.

23.Accordingly, I agree with the respondent’s submission that this case depended on a proper evaluation by the judge of the respective facts and evidence put forward by the prosecution and defence witnesses.  I can see no error or impropriety on the part of the judge in that exercise. It was for him to make findings of fact and credibility, not for the Court of Appeal, which, unlike the judge, will not have the advantage of seeing and hearing the witnesses.  If there were discrepancies to resolve, the judge considered them, such as they were, and made appropriate findings.  As I have said, his reasoning and findings cannot be said to be in error, let alone plainly wrong.  On the contrary, they were findings to which he was perfectly entitled to come and seem unassailable.  The application for leave to appeal against conviction is refused.

24.I advise the applicant that he has the right to renew his application for leave to appeal to the Court of Appeal.  However, he should also be warned, if he does so, that the Court of Appeal has the power to order the loss of any time which he has spent in custody pending his appeal, if the Court were to come to the conclusion that there was no justification for the renewal of this application.

Ms Human Lam SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person