R. v. Akram Muhammad

CACC000251/1996

IN THE COURT OF APPEAL

1996, No.251
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer AND Mayo, JJ.A.

Date of hearing: 11 December 1996

Date of judgment: 11 December 1996

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of robbery which alleged that he on 2nd August 1995, inside a lift at 9th Floor, Block E, Chung King Mansions in Nathan Road, robbed Mahmood Zahir of $300 in cash. He pleaded not guilty to that charge but was found guilty after trial before Judge Chua in the District Court and sentenced to imprisonment for three years and ten months. He now appeals against that conviction.

2. It was the Crown case, which came principally from the evidence of the victim, that when he, the victim, who was 19 years old, was in a lift in Chung King Mansion at about 1:15 a.m. on 2nd September 1995, he found that the lift stopped on the 9th floor. The applicant then appeared and told the victim to produce his wallet. When he refused the applicant pushed him, pulled out his wallet, extracted $300 and then returned the wallet. He then slapped the victim and told him to leave, which the victim did, but upon his arrival at the ground floor he used his portable telephone to call the police who arrived shortly after. The victim, having made his report to them, saw the applicant on the ground floor and pointed him out to the police who thereupon arrested him.

3. In the course of the trial it was put to the victim that he had fabricated the robbery for motives of revenge. This he denied.

4. The applicant gave no evidence.

5. The trial judge stated that he was satisfied having seen and heard the victim that there was no substance in the defendant's allegation. She said:

"Without evidence from the defendant these allegations remain just that. Asked by Mr. Chau (counsel for the applicant) if he had tried to stop the defendant taking his wallet, he said he did not. He was frightened and thought the defendant might not have been alone. I am satisfied on the evidence the robbery charge has been proved beyond reasonable doubt."

6. The applicant in his original grounds submitted that the trial judge had erred in rejecting the suggestion that the victim and he were friends and in failing to give weight to the submission that it was unlikely in the extreme that the applicant would commit robbery in his place of residence. As I have already indicated the applicant himself gave no evidence. The trial judge was left only with the evidence of the victim. Nothing that the applicant set out in his three original grounds of appeal would persuade us to question the findings of the judge as regards the credibility of the victim.

7. The applicant, however, on the first day of this appeal raised a further ground. He alleged that Mr. Chau Hing Pang, who was appointed by Legal Aid to represent him, did not fulfil his obligation properly to conduct his defence. He states in his written submission that Mr. Chau lacked enthusiasm in his defence and that he had, to his clear detriment, elected to give no evidence under his advice. He alleges that Mr. Chau was either inexperienced or unprofessional and that he did not care about the defence.

8. These allegations were referred to Mr. Chau who in a written statement said that he had never advised the applicant not to give evidence but had advised him that, if he decided to do so, he should be prepared to be cross-examined on his past record as the character of the victim had been attacked.

9. Mr. Chau gave evidence before this Court in which he reiterated that he had not told the applicant not to give evidence but had simply given him advice as to the consequences of his giving evidence. He said that following upon this advice the applicant stated that he did not wish to give evidence. The applicant, was offered the opportunity to do give evidence but did not wish to do so. We are satisfied that there is nothing in the suggestion of the applicant that counsel somehow placed improper pressure upon him and persuaded him that he should not give evidence. We accept that counsel properly advised him as to the consequences of his giving evidence and left the decision to him as to whether or not he should do so. That this was the case is very clearly borne out by statement signed by the applicant at the time in which he said:

"After hearing the explanation of the Crown evidence and my instruction by my counsel, I decide not to give evidence in the witness for my case. The decision is made out of my own free will without any undue influence or threats by others."

There is nothing of merit raised by the applicant and the application must, therefore, be refused.

10. We are satisfied that the appeal has been entirely without merit and that the attack made upon counsel was quite unwarranted. This is a proper circumstance in which to order loss of time. We therefore order that the applicant shall lose three months' time, which means that three months of the period between the filing of the notice of appeal and today will not count towards sentence.

Representation:

Applicant in person.

Mr. Tony Schapel, Consultant (Crown Prosecutor) for the Respondent.