HKSAR v. Dost Imran

DCCC 492/2020

[2021] HKDC 591

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 492 OF 2020

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Reasons for Verdict

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1.The defendant faces a single charge of robbery. The victim is a Mr Singh Buta or Buta Singh. He says that the defendant robbed him of those items particularised in the indictment. He said that occurred when they were drinking and socialising at Tai Mo Shan, at the country park at Tai Mo Shan on the evening of 26 December 2019.

2.The defendant says that although he was with Buta Singh earlier in that evening, he had gone home and he was not with him when the robbery happened.  The defendant believes Buta Singh accused him because he, Buta Singh, owes money to the defendant and had refused to repay it. 

3.The main witness for the prosecution was actually Mr Buta Singh, PW1.  He is a Punjabi speaker, a 20-year Hong Kong resident. 

4.On the afternoon of 26 December 2019, he went to the Mong Kok area.  He met some fellow Asians near Exit B2 of the Mong Kok MTR station.  One of these men, he said, was the defendant.  He had not met the defendant before.  They socialised and drank. PW1 drank whiskey, the other men drank beer.  They stayed at that location from 5.30 pm to about 8 pm.  Then, the defendant, Buta Singh, and some other men left in a car and went to the area of Tai Mo Shan.  A drink was taken and they continued drinking at that location. 

5.Eventually, PW1, Buta Singh, said he wanted to leave the defendant and others.  At that time, the defendant and another man took out cutters, threatened him, and asked him for his bag.  PW1, as a result of this, eventually gave them his money and possessions including his mobile telephones, his watch, his camera, his identity documents and work cards.  Eventually the three men, which included the defendant, left.  PW1 then walked down to Tsuen Wan police station and reported the robbery and made a statement. 

6.When PW1 and the defendant had been talking that evening, the defendant had seen photographs on PW1’s phone.  Defendant has said he knew one of the men whose photograph appeared on the phone.  This man was called Roop eventually PW1 communicated with him in order to try to communicate with the defendant to get the return of some of the items that had been stolen and in fact it appears that on 27 December, many of the items were returned through an intermediary. 

7.On 1 May 2020, PW1 saw the defendant at Mong Kok MTR station.  He stopped him and held him there until the police arrived and the defendant was arrested. 

8.The defence case was advanced by the defendant in evidence.  He called as witnesses his wife who was, in effect, an alibi witness and another man, to evidence that the defendant and PW1 had a relationship that preceded the meeting on 26 December 2019.  The defendant said he had known PW1 before 26 December 2019.  In the past, they have met every week to drink.  By 1 May 2020, they had known each other since 2018.  They met at a garden by Exit B2 of the Mong Kok MTR station and drank there.  Defendant said that he did drink with PW1 on 26 December but he left around 6.30 pm and returned home to be with his wife and child. 

9.On 1 January 2020, the defendant had loaned some HK$2,000 to PW1.  He had also loaned HK$5,000 to him in 2019.  From January to May 2020, the defendant saw PW1 occasionally.  On 1 May 2020, PW1 asked the defendant for $500.  Defendant refused because PW1 still owed him money.  PW1 then is said to have assaulted the defendant and they quarrelled.  PW1 called the police and the defendant himself also called the police.   Eventually, the police arrived and the defendant was arrested. 

10.The defendant’s wife’s evidence is that the defendant returned home on the evening of 26 December 2019 between 6 to 7 pm and did not go out again.  She said she had seen PW1 once before out of a window.  She knew that he, PW1, had asked the defendant for money. 

11.The final defence witness was a Mr Khan.  He said he had known PW1 for three years.  He had met him about three times a month with the defendant.  He had been present when PW1 had loaned the $5,000 from the defendant.  The defendant had counted the money, given it to him, the witness, and he had given the money to PW1.  This witness was apparently the defendant’s cousin. 

12.It can be seen from this summary that the main issue of the case is one of credibility.  Were PW1’s evidence to be accepted and that of the defendant and his witnesses rejected, then a secondary issue of identification would arise.  Even though the defendant’s case would appear, on its face, to conceive that PW1 is well-known and well-capable of identifying due to that previous relationship. However, this previous relationship was denied by PW1.  Therefore, if I were to accept PW1’s evidence, then PW1 and the defendant would only have met on 26 December 2019, and then some four months later on 1 May 2020. 

13.The prosecution of course bring this case.  There are required to prove the case beyond a reasonable doubt.  The defendant is charged with having committed a robbery. Naturally, that requires the prosecution to prove that the robbery occurred, there had been a stealing, and immediately before the time of that stealing and in order to do so force had been used on any person or the defendant to put any person in fear of them and then being subjected to force. 

14.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. 

15.As far as the issue of identification is concerned, in any case where there is an issue of identification, the court should of course approach this with a special need for caution.  In this case, there is no allegation that PW1’s allegation was in any way akin to a fleeting glimpse but the court should still examine the way in which the identification took place, the length of time over which the identification took place, the circumstances such as the lighting, whether the witnesses were known to each other and considerations of the like. 

16.I will proceed now to resolve the issues in the case, resolving the issue of credibility first.  The first prosecution witness’ credibility, reliability and truthfulness were attacked.  It was said that PW1’s first description of the robbers was not consistent with the prosecution case.  In his first witness statement which was given on the day after the robbery took place but within what would be the same evening, the first description given in that initial complaint.  This occurred not a long time after the offence of robbery had occurred.  In fact, the first prosecution witness say that 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, which would appear to be something of a generic description. 

17.PW1’s second description was in the witness statement given on 1 May after the defendant had been arrested.  Here, he describes three men, one of the defendant as 30 years, thin, wearing a t-shirt, long pants, 1.7 metres tall, short black hair.  The defence pointed out that of course at that point, PW1 had seen the defendant when the arrest had taken place. 

18.Secondly, it was said that defendant had not told the police at the time about the recovery of the stolen property on 27 December and also of the alleged conversations that took place with the defendant about this issue and that PW1 had not mentioned it in his earlier statement on 27 December about he and the defendant having a mutual acquaintance called Roop. 

19.In respect of the identification, it is said by the defence that some four months have passed between the robbery on 26 December and the identification on 1 May of the next year, that PW1 that evening had been drinking for almost six hours on 26 December.  

20.Furthermore, it was said that the court must consider the evidence of the defendant’s witnesses, especially his alibi witness, his wife.  It was said that the defendant’s evidence about returning home on 26 December between 6.30 to 7 pm was clearly confirmed by his wife, Daini, and that furthermore that the cousin, the next defence witness, confirmed the defendant had known PW1 for some time and he had also confirmed the existence of a loan between the defendant and PW1. 

21.I assess the relative credibility and truthfulness and reliability of PW1, that of the defendant and of the defendant’s witnesses.  Overall, I found PW1 to be credible, reliable and truthful witness.  He had quickly complained about the robbery, his general demeanour and actions were those of a person who had been robbed.  I consider the story or the account about a loan  existing between the defendant and PW1 had simply been made up by the defendant to provide some explanation for why PW1 had identified him.  I consider this explanation by the defendant to be a contrivance.  The defendant is a Form 8 asylum seeker reliant on money from the government and occasionally 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. 

22.I also did not consider that PW1’s description of events was affected by the alcohol he had taken some 1½ hours or 2 hours before he was able to reach the police station that evening.  The description given at the time is not detailed.  It is not necessarily inconsistent with his later descriptions of the defendant. As I said, it has the look of a somewhat generic description. 

23.Furthermore, at the time when PW1 was giving that statement, one has to consider that he had been robbed, subjected to violence which was evident by a medical report, and had been awake for most of the night when he gave those descriptions.  I noted that PW1 had not told the police about Roop or the return of some of the proceeds of the robbery.  I did not find that this undermined PW1’s credibility.  He is a civilian witness.  He is not a lawyer and he is not a policeman. 

24.Overall, despite the matters raised by the defence, I found PW1 to be both consistent and a reliable witness on whom I could place reliance.

25.I did however found the defendant’s portrayal of himself as PW1’s friend and acquaintance to be untrue and a contrivance.  As I have said earlier, the defendant would have had no good reason to loan money to PW1, a working Hong Kong resident. There is no documentation to accompany any loan might have taken place.  I did consider the evidence of both the defendant’s wife and his cousin.  I did consider this.  I did, having heard them, consider that they were simply giving evidence or the evidence required to give the defendant’s evidence in some appearance of truthfulness or verisimilitude.  I rejected their evidence in its entirety as I did with the evidence of the defendant.  It appeared to me to be made up a contrived story.  I rejected the defendant’s evidence that he was involved in loaning money to PW1. 

26.It must therefore follow that the cousin, the third defence witness, the defendant’s wife and their evidence on these matters was basically a fabrication designed to assist their relative, the defendant.  This negated all the other evidence, I found, that they gave. 

27.At the end of the evidence, my consideration of the evidence, I was simply left with the evidence of PW1.  This was the only evidence I found reliable that have been given to me.  That meant I accepted PW1’s evidence that he had never met the defendant before 26 December and that he was nevertheless able to identify him some four months later.  I accepted PW1’s evidence that he was robbed in the way he described, that the defendant held a cutter in the course of that robbery.  It was of course necessary for me to approach the issue of identification with a deal of caution.  An honest witness about identification can be mistaken especially in areas of identification.  However, in this case it would appear to me there is no reason to doubt PW1’s identification of the defendant. 

28.On the evening of 26 December, PW1 and the defendant were in each other’s company for a very lengthy period of time, both outside the MTR entrance and later up at Tai Mo Shan.  They conversed, they drank alcohol together, they were in close proximity to one another.  The length of time that they were together means that any subsequent identification by PW1 of the defendant would be more in the nature of a recognition than an identification.  I am satisfied that on the 1 May, PW1 recognised and identified the defendant as none other than the man who had robbed him on 26 December 2019.  I am satisfied of that beyond a reasonable doubt. 

29.That being the case, the defendant must be convicted of this offence.