R. v. Sajed Mahmood Minhas Hameed Amar

CACC000379A/1996

IN THE COURT OF APPEAL

1996, No. 379

(Criminal)

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Coram: Hon Nazareth V.-P., Mortimer and Mayo JJ.A. in Court

Date of hearing: 3 December 1996

Date of judgment: 3 December 1996

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicants, Sajed Mahmood Minhas and Hameed Amar, were tried and convicted on 10th June 1996 by Her Honour Judge Chu in the District Court. Sajed, the 1st applicant was convicted on three charges and Hameed, the 2nd applicant, on the first and second of those charges.

2. The charges were: first, blackmail, in that the two applicants and another person on 5th October at the car park outside Block 1, Marina Garden, Castle Peak with a view to gain for themselves made an unwarranted demand for HK$3,000 from Mohammad Zahir Yusuf with menaces. The second count was of assault occasioning actual bodily harm to Yusuf and the third charge only against the 1st applicant was that on the same day and at the same place he claimed to be a member of a triad society, namely the Wo Shing Wo triad society.

3. Sajed was sentenced to imprisonment for 21 months, 9 months and 3 months respectively in respect of the three charges to run concurrently. Hammed was sentenced to 18 months and 6 months on the first two charges to run concurrently but consecutive to six months on an earlier sentence. Both applicants now seek leave to appeal against their convictions.

4. The facts are these. The victim, Yusuf, was a site supervisor of a construction site at the Ting Kau Bridge, Tsing Yi. He had about 20 workers under him. At about 7 pm on 5th October 1995, he was waiting outside the construction site for a public light bus to go home. Sajed and two other men came up to him and asked him to get $3,000 from each person working under him and to pay to Sajed. A bus arrived at that time. The victim immediately boarded it. Later that evening, at about 8.05 pm, the two applicants together with several other Pakistani men went to the victim's home at Marina Garden. Sajed asked him to go downstairs for a talk. He did so. At the car park, Sajed told him that he was a member of the Wo Shing Wo triad society. He asked Yusuf to collect $3,000 from each of the workers every month and pay it to him otherwise he would have trouble at the construction site and would be beaten up. He was then assaulted by the group and told if he did not comply with the demand he would be disturbed at work and at home. The victim reported the matter to the police after he got back to his flat. They sent him to the hospital where he was found to have sustained injuries to various parts of his body.

5. The two applicants were arrested and later identified by the victim and his younger brother at an identification parade.

6. The defence was simply that the applicants had no part in the incident. The particulars in Sajed's defence was that the victim and his brother had made it up because of a previous grudge relating to their sister. He testified to a long previous association with the victim with whom he said he had grown up and knew well, and also to money he said the victim owed to Sajed's friend which he had demanded be repaid. He claimed to have been with his wife at his mother-in-law's home at the time. He served an alibi notice and called his wife to give evidence.

7. Hameed relied upon mistaken identity. He also served an alibi notice and called a co-worker who said he was with him.

8. It should be mentioned that there was another co-defendant charged jointly with the two applicants and also upon an additional charge, but we are not concerned with him or that additional charge.

9. The judge for the reasons she gave was impressed with the victim's evidence. She found him a truthful witness. In contrast she found that Sajed was evasive, vague and prevaricating. She was also unfavourably impressed by aspects of his evidence that the rift over the sister had been mended and that his mother-in-law who apparently refuted his alibi was mentally unwell. The judge's rejection of Sajed's evidence cannot be faulted. We will return to that.

10. Before us Sajed at the earlier hearing of this appeal which we adjourned for the purpose we will mention, Sajed took two points in his defence. First, he said, that although his mother-in-law, as appeared from the evidence below, had denied to the police that Sajed had stayed at home at her flat, that was because she had been warned by the Housing Department that action would be taken against her if she allowed other persons to share her unit. He produced such a warning letter to us. Second, he complained of the conduct of his defence by the Legal Aid Department and by counsel briefed on his behalf, who he claimed was ill-prepared and contrary to his instructions did not call four witnesses to prove that he was not at the scene.

11. Having regard to that complaint, we adjourned the further hearing of the appeal to today, to enable his allegation in respect of his representation to be investigated.

12. Having received the results, we are satisfied that those complaints are groundless.

13. After his wife had given evidence, it became clear to his counsel that she contradicted his brother-in-law's evidence in saying that his brother-in-law went out to work whereas the brother-in-law's evidence was to the effect that he stayed at home and therefore could vouchsafe that Sajed also did so. In those circumstances he very properly advised Sajed of the dangers of calling his brother-in-law. The same difficulty arose about his mother-in-law. She could not give evidence supporting his alibi because she had denied that in a statement to the police. In those circumstances it can be seen that no blame or criticism can be attached to the conduct of his legal advisers. These sorts of complaints are all too easy to make and are all too frequently made these days. The onus is on the person who makes such complaints to establish them, although that has to be done to a lower standard of proof. In this case, there is no foundation to the allegations whatsoever. We dismiss the complaints against his legal advisers.

14. The other point that Sajed made was that the judge mentioned the fact that his mother-in-law's evidence was contrary to his and used that as the basis of the rejection of his evidence. It is true that in his judgment, the judge does refer to the mother-in-law not supporting Sajed's evidence. But that in fact was the position there. We accept from the document he produced, that the Housing Department had warned his mother-in-law about the presence of other persons and that action would be taken against her. However, if she gave such evidence, it would have shown that she was willing to make false statements to assist him. We cannot see, therefore, that against the evidence of Yusuf which the judge very carefully considered and accepted that her evidence would have made any difference. As we have said, the judge in her long and careful judgment addressed the question of identification, of credibility and of Sajed's evidence. Having done so, she came to the conclusion that she could accept the evidence of the victim Yusuf. The evidence he gave amply established the three charges. We find no reason to question the judge's findings on those charges. Upon that basis we refuse the 1st applicant's application for leave to appeal against conviction.

15. As to the 2nd applicant, the victim Yusuf's evidence was that he was among the several men who appeared at his flat at 8 o'clock that evening, and took him down to the car part, threatened him and assaulted him. Clearly the men were acting in concert. The applicant was present and took part. The judge was entitled to find him guilty. The only question is the point that the applicant, Hameed, raised below before the judge and before us, i.e. whether he was there. Before us, he complains that the witness, Yusuf, did not mention that he took any active part. That does not matter for, as we have observed, the men acted in concert. His defence below, as before us, was that the co-worker who gave evidence for him had said that the victim, Yusuf, had admitted to him that he was not sure Hameed was one of the group of men who went to the flat. The judge carefully dealt with that matter, pointing out that Yusuf denied saying any such thing. The judge accepted Yusuf's evidence as indeed she was entitled to do. In those circumstances she was entitled to reject the defence. We can find no fault with her conclusion. For those reasons, we refuse the 2nd applicant's application for leave.

16. Both applications are refused.

Representation:

Applicants in person

Mr A.E. Schapel (Crown Prosecutor) for Crown/Respondent