HKSAR v. Thapa Ramkishna and Others

CACC 375/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.375 OF 2003

(ON APPEAL FROM DCCC NO.364 OF 2003)

---------------------

BETWEEN

----------------------

Before : Hon Stuart-Moore VP, Hartmann and Lugar-Mawson JJ in Court

Dates of Hearing : 23 November 2004, 7 January and 3 March 2005

Date of Judgment : 5 May 2005

-------------------------

J U D G M E N T

-------------------------

Hon Hartmann J (giving the judgment of the Court) :

Background

1.On 5 August 2003, the four appellants were convicted following trial in the District Court before Deputy Judge Chainrai of one count of assault with intent to rob, contrary to s.10(2) of the Theft Ordinance, Cap.210.  Each of the appellants was sentenced to three years.

2.On 20 January 2004, Yeung JA granted leave to the appellants to appeal against their convictions and sentences.

3.By notice dated 24 August 2004, the first appellant, A1, abandoned his appeal against sentence and, during the course of the appeal hearing itself, was given leave to abandon his appeal against conviction.  Thereafter his appeal was dismissed.  Accordingly, this judgment is concerned only with the three remaining appellants, A2, A3 and A4.

The prosecution case

4.The evidence upon which all four appellants were convicted was to the following effect.

5.At around midnight on 19 March 2003, having had dinner in Chungking Mansions, the victim, a man of Pakistani origin named Hussain, was walking along Nathan Road.  He was alone.  At the junction with Mody Road, Hussain was approached by the appellants, all men of Nepalese origin, none of them known to Hussain.

6.A1 told Hussain that he was the “top man” in the area and demanded money from him.  Hussain said that he had no money on him.  He was then punched on the jaw by A1 while the other three appellants grabbed him, one on either side holding his arms, one behind holding his collar.  One of the appellants attempted unsuccessfully to reach into Hussain’s trouser pocket to pull out his wallet.

7.As this was taking place, a man named Liquait walked past.  He and Hussain were strangers to each other but, obviously recognising Liquait as also being of Pakistani origin, Hussain called to him in Urdu, seeking his help.  Liquait did not stop.  However, he had seen A1 punch Hussain and had seen the other three appellants seizing him.  He therefore used his mobile telephone to call the police.  While engaged in this call, he saw two police officers on the street and led them back to the scene.

8.As for Hussain, he had been able to convince A1 that he had no money on him but that, if allowed to use his mobile telephone, he would be able to contact a friend to obtain funds.  He was therefore allowed to move a short distance away to make the call.  Hussain used that opportunity to telephone the police, returning to the appellants to tell them that the money was on the way.  It was at about this time that Liquait arrived with the police.

The defence case

9.Of the appellants, only A1 testified in his own defence, calling two witnesses.

10.It was A1’s evidence that, contrary to Hussain’s testimony, while A1’s companions may not have known Hussain, he knew him well.  He said that some six years earlier he and Hussain had worked together on a construction site.  Indeed, it was A1’s evidence that Hussain owed him money from about that time and their chance meeting that night had resulted in A1 requesting repayment.

11.As to how the debt had arisen, A1 testified that Hussain had offered, for a commission of $2,000 per person, to find work for A1 and a number of his friends.  The money had been given to Hussain who had however failed to secure work for them and, despite a number of promises, had failed to repay the money.

12.A1 said that on 19 March 2003 he had been in the company of the other three appellants, all of them heading towards Chungking Mansions for a meal, when he had seen Hussain and Liquait together.  The two of them therefore must have been known to each other.  He said that he approached Hussain to ask for repayment of the money.  When he made his request, he said that his companions were close by, only some “three or four arms’ lengths” away.  A1 said that he had treated Hussain “like a friend”, denying that there had been any physical violence.  As to what then occurred, A1 said the following :

“When I met [Hussain] and when I asked for my money, he said that he is going to ask it from his friend, and he tried to call his friend, and I realised that he wasn’t calling his friend but instead he had called the police, and the police came and arrested us.”

13.A1 called two witnesses.  The first, DW2, testified that he had been one of A1’s companions who had paid Hussain money to secure work and had been cheated out of that money.  The second, DW3, testified that in 1997 he had been a foreman on a construction site on which A1 and Hussain had worked together.

Reasons for verdict

14.The trial judge was faced with a conflicting version of events.  She was satisfied, however, that she could rely upon the evidence of Hussain and Liquait, the latter, on her findings, being an independent witness.  She found Hussain and Liquait to be “honest and credible witnesses” who had given their evidence in a “straightforward and sensible manner” answering questions, “directly and cogently”.

15.The judge observed that, when Hussain had been mistaken in his memory, he had readily admitted it, citing as an example his confusion as to the order in which the four appellants had drawn close to him in the early stages of the incident.

16.Having observed the two prosecution witnesses give their evidence, each being extensively cross-examined, she was satisfied that she could rely on their joint testimony “in its entirety”.

17.The defence evidence raised no doubts in her mind as to the strength of the prosecution case.  She rejected the testimony of A1 and DW2 as untruthful.  As for DW3, the foreman who said that some six years earlier Hussain and A1 had worked under him on a construction site, the judge concluded that she could place no reliance on his evidence.  In her Reasons for Verdict, she noted that DW3 had given evidence that Hussain and A1 had worked under his supervision for “6 to 7 months”.  However, when informed that A1, in the course of his testimony, had put the period at only “4 months”, he had admitted he could be mistaken.  The judge further noted that the construction site had been very extensive, employing “4,000 to 5,000 workers of different nationalities” and that DW3 had worked at different places on the site.

New evidence

18.Subsequent to the conviction and sentencing of the applicants, Hussain himself was convicted of a criminal offence in respect of an entirely unrelated matter and was sentenced to a term of imprisonment.

19.It was submitted on behalf of the appellants that, having arrived in prison, Hussain confessed to a number of fellow prisoners that he had perjured himself when he had testified for the prosecution at the appellants’ trial.

20.Two of these inmates, Thapa Rosan (‘Rosan’) and Gurung Prem Bahadur (‘Bahadur’), testified before us that Hussain had confessed to them that A3 and A4 had not been involved in the incident that night and had only arrived well after it had ended, a version of events that A1 himself had not given at trial.  A third prisoner, Asif Nazir Nomi (‘Nomi’), who had been tried for the same offence as Hussain and imprisoned with him, testified that Hussain had confided in him both before the two of them had been imprisoned and after their imprisonment that the incident on the night of 19 March 2003 had concerned repayment of a debt, just as A1 had alleged, that there had been no assault upon him and that in any event only A1 and A2 had been involved in the incident, A3 and A4 arriving later.

21.Police investigations into this new evidence resulted in the respondent calling Hussain and two further witnesses to testify before us.

22.The first of these witnesses, Nawaz Imran (‘Imran’), testified that he had been approached in prison by Rosan, Bahadur and A4 who, acting in concert, had asked him to give false evidence against Hussain in return for a cash reward.  The second, Javid Kampan (‘Kampan’), testified that he had been present and had heard Imran being offered money in order to give false evidence.

23.Hussain himself, when called, denied that he had perjured himself when he had testified as a prosecution witness against the appellants and further denied that he had at any time intimated to any third party that he had done so.

Grounds of appeals

24.The appellants’ grounds of appeal against conviction may be summarised as follows :

(i)	That, by reason of the testimony given to this court by Rosan, Bahadur and Nomi that Hussain had admitted perjuring himself at trial, the convictions of each of the appellants had been rendered unsafe and unsatisfactory.
(ii)	That in addition, and in any event, the trial judge had :
	(a)	failed to give due weight to the inherent improbabilities in the prosecution case which suggested that the true version of events was that put forward at trial by A1 and his witnesses;
	(b)	in light of the inconsistencies in Hussain’s evidence, had erred in accepting that evidence, and
	(c)	had failed to give due weight to the evidence of DW3 who testified that A1 and Hussain had not been strangers, as Hussain had testified, but had been known to each other for a number of years.

An assessment of the new evidence

25.In our view, Rosan, Bahadur and Nomi were most unimpressive witnesses.  We had no hesitation in rejecting their evidence as probably the result of collusion and certainly lacking any foundation of truth.

26.Rosan, for example, testified that in prison he and Bahadur, who were friends, had discussed the case constantly with Hussain, Hussain being mortified at “framing” A3 and A4.  Bahadur, however, recalled clearly that the matter had not been discussed constantly but only on two occasions.

27.It is also notable that, despite putting themselves forward as neutral witnesses with no partisan allegiance, interested only in telling the truth, both had refused outright to co-operate with the police when first approached by them in respect of their evidence.

28.As for Nomi, it emerged during the hearing that he had given evidence of a very similar nature in an earlier trial, that evidence being to the effect that a prosecution witness had confided in him that he had committed or intended to commit perjury.  Nomi’s evidence before us was marked by inconsistencies and equivocation.  We could place no reliance on it as in any material way being evidence of the truth. 

29.In contrast to the evidence of Rosan, Bahadur and Nomi, we were satisfied that the evidence of the respondent’s two witnesses, Imran and Kampan, could be relied upon as evidence of the truth.  Imran testified not only that he had been approached by Rosan, Bahadur and A4 to give false testimony in return for a cash payment but that at a later time he had heard snatches of conversation between Rosan, Bahadur and A4 in which the first two said that now that they had given evidence before the Court of Appeal, A4 must make arrangements to pay them.  To place this within context, Rosan and Bahadur gave their evidence before this court on 7 January 2005, Imran and Kampan only on 3 March 2005, nearly two months later.

30.As for Hussain, while for obvious reason we approached his evidence with caution, in so far as it constituted a denial of having committed perjury or of having made a confession to that effect, we were satisfied we could accept it as evidence of the truth.

31.In summary, the new evidence did not in our judgment render the convictions of any of the appellants unsafe or unsatisfactory.

The remaining grounds of appeal

32.Our rejection of the new evidence led on behalf of the appellants did not in any way influence the remaining grounds of appeal which went to the evidence led at the trial in the District Court, more particularly to the trial judge’s assessment of the credibility of witnesses and her findings of fact.

33.It was submitted on behalf of A2, A3 and A4 that the trial judge failed to give due weight to the inherent improbabilities in the prosecution case which, it was argued, suggested that the true version of events was that put forward by A1 and his two witnesses.  That, of course, begged the question of whether the prosecution case could be described as being inherently improbable.  In our view, bearing in mind the time of night and the location, there was nothing so inherently improbable in the description of events given by the prosecution witnesses as to suggest that the judge should have rejected it as incapable of belief.  Manifestly, there was some kind of incident that night, an incident serious enough to compel Liquait — on the judge’s findings, an entirely credible, independent witness — to bring police to the scene where all the appellants and Hussain were found together.

34.It was further submitted that, in light of the inconsistency in Hussain’s evidence, the trial judge had erred in accepting that evidence.  It was of course the duty of the judge to consider any material inconsistencies in Hussain’s evidence and it is apparent from her Reasons for Verdict that she did so.  We do not see how she can be criticised for coming to the finding of fact that such inconsistencies, considered in context, did not undermine her assessment of Hussain as a truthful witness.

35.Similarly, it was submitted that the trial judge failed to give due weight to the evidence of DW3, the witness who spoke of A1 and Hussain being known to each other.  But the Reasons for Verdict show that the judge did consider it and, for stated reasons, found that she could place no reliance upon it.  Again, we can find no grounds for criticising her findings in this regard.

Sentence

36.On behalf of the appellants, it was submitted that the sentences of three years imposed upon them were manifestly excessive.  We find nothing in this.

37.In sentencing each of the appellants, the judge bore in mind appellate authority that for unarmed robberies a starting point of four years may be appropriate.  This would have been a reference to HKSAR v. Ting Chiu [2003] HKLRD 378, a case in which four men confronted a middle-aged couple walking in the countryside, declared robbery and stole cash and valuables from them.  The fact that the robbery had involved more than one culprit had been found to be an aggravating feature in that case.

38.In considering the culpability of the appellants in the present case, the judge said :

“I view this offence as being extremely serious.  Four men surrounded one man late at night and manhandled and assaulted him, intending to rob him.  It was only by the arrival of the police that the matter came to a halt.  Although there were no weapons used, force was used upon the victim.  The defendants have each been convicted after trial and they have shown no remorse whatsoever.”

The judge continued :

“The assault was a punch to PW1 by D1 whilst he was held by the other defendants.  Money was demanded from PW1.  In my view, the appropriate sentence, taking into account the circumstances of the offence and the circumstances of each defendant, is one of 3 years’ imprisonment.”

39.The reduction from four to three years took into account the fact that the appellants had been convicted of the lesser offence of assault with intent to commit robbery.

40.In seeking to demonstrate that the sentences were too high, Mr McGowan emphasised that A2, A3 and A4 were all men of previously good character.  But this was a matter which the judge herself took into account.  It was submitted that the victim was not searched nor was any attempt made to take his possessions.  This, however, ignored the fact that, on the evidence, it was apparent that the appellants were expecting a third party to arrive with cash.

41.It was further submitted that the sentences were wrong in principle in that the judge failed to differentiate between the moral culpability of A1, who took the most active role, and A2, A3 and A4 who although part of the joint enterprise, played supporting roles only.  Mr McGowan sought to find support for his submission in Attorney General v. Tam Ka Lok and Others [1990] 1 HKC.  But while in that judgment it was recognised that there may be room for differentiation in that, for example, an identified ‘ring leader’ may properly receive a stiffer sentence, it was recognised that the scope for differentiation between the culpability of those who participate in a joint enterprise will invariably be limited as, in respect of each, the sentences must reflect their shared basic criminality.  Unless the facts clearly demand it, it is not therefore obligatory for a sentencing judge to draw distinctions between differing degrees of participation in a joint enterprise.

42.In the present case, we do not see how the judge can be criticised for imposing the same sentence on each of the appellants.  A1 may have been the one to make the demand for money and to have delivered the blow to the victim’s jaw but the others played active roles too, surrounding their victim and holding him, one of them attempting to reach into his trouser pocket to remove his wallet.

Conclusion

43.For the reasons given, the appeals against conviction and sentence are dismissed.

Mr David Mackenzie- Ross, instructed by S.Y. Chu & Co., for 1^st Applicant

Mr James McGowan, instructed by Messrs A.M. Mui & Kwan, for 2^nd and 3^rd Applicants on 23 November 2004 and 7 January 2005

Mrs Mahinder M. Panesar, instructed by Solomon C. Chong & Co., for 2^nd and 3^rd Applicants on 3 March 2005

Mr James McGowan, instructed by Messrs A.M. Mui & Kwan, for 4^th Applicant

Mr Kevin P. Zervos, SC, SADPP of Department of Justice, for Respondent