HKSAR v. Mohammad Azam

CACC 55/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 55 OF 2006

(ON APPEAL FROM DCCC NO. 903 OF 2005)

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BETWEEN

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Before : Hon Woo VP in Court

Date of Hearing : 1 August 2006

Date of Judgment : 1 August 2006

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  J U D G M E N T

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1.On 20 January 2006, the applicant was convicted after trial before Deputy Judge Johnny Chan in the District Court of three charges, namely, Charge 1: robbery, Charge 2: blackmail and Charge 3: claiming to be a member of a triad society,.  After obtaining a probation officer's report on the applicant, on 3 February 2006, the judge passed a sentence of imprisonment for 2½ years on Charge 1, 18 months on Charge 2 and 12 months on Charge 3, and ordered that the sentences on Charges 2 and 3 to run concurrently with each other, but 6 months of these sentences to run consecutively to the 2½ years' imprisonment on Charge 1, making a total of 3 years' imprisonment. 

2.The applicant seeks leave to appeal against both conviction and sentence. 

3.The grounds raised in the notice of application are that the applicant was innocent, that the prosecution did not have sufficient evidence against him, and that the sentence is too long as compared with similar cases.

4.Today, the applicant has handed to me his written submissions together with a request for legal aid to be granted.

5.The evidence adduced by the prosecution can be described very briefly.  On 30 September 2004 at around 8.45 pm, PW1, the victim, a Pakistani, was on his way home, walking past the taxi stand at Tung Chung Development Pier, Tung Chung Waterfront Road, Lantau Island.  He was intercepted by the applicant, a Pakistani, who was with two other Pakistanis and a Chinese male.  The applicant introduced himself as Azam from the area of Yat Tung Tsuen.  The applicant also told the victim that he was one of the big persons in the area and that he was of 14K.  The applicant grabbed hold of the front collar of the victim, punched him once on the neck and slapped him once on the face.  The applicant took the mobile phone of the victim and turned it off.  He searched the bag that the victim was carrying and took the victim's wallet out from the victim's pocket.  He took $1,100 from the wallet and returned the wallet to the victim.  This constituted the offence of robbery. 

6.The applicant told the victim that since the victim used the way every day, the victim should pay him $1,500 every month or else he would kill the victim.  The applicant said that this was his tax and he was one of the big persons there.  The victim was frightened and yielded to the demand.  The applicant then returned the mobile phone to the victim and told him not to report the matter to the police.  At the victim's request, $100 was given back to him by one of the companions of the applicant.  The applicant and his three companions then boarded a vehicle and fled.

7.The victim reported the case to the police and told them the registration number of the fleeing vehicle.  The applicant was later arrested and identified by the victim at an identification parade.  The victim had seen the applicant many times in the past when the victim walked past the area to catch the ferry, but he had never spoken to the applicant before the incident.

8.The claiming of being 14K, admittedly the name of an active triad society in Hong Kong, constituted the offence under Charge 3.  The unwarranted demand of payment of $1,500 a month from the victim constituted the offence of blackmail. 

9.At the trial the applicant was represented by counsel.  His counsel made a submission of no case to answer to the judge, which was rejected.  The applicant did not give evidence and his counsel submitted to the judge that the case against the applicant had not been proved beyond a reasonable doubt.  Counsel pointed out the inconsistencies between the evidence of the victim in court and the contents his statement to the police taken on 30 September 2004, the inconsistencies in the victim's own evidence at various stages of the evidence in-chief and cross-examination, and other aspects that allegedly undermined of the quality of the victim's testimony. 

10.I have read with care the Reasons for Verdict given by the judge.  He dealt with the submissions of defence counsel in detail and explained why he accepted the victim as an honest and reliable witness against the applicant.  Although the judge felt that he was not sure of the involvement of another defendant D2, who was jointly charged with the applicant for the robbery and blackmail offences, because of a significant discrepancy between the victim's description to the police of the companions of the applicant and the build and appearance of D2, he found the case on the three charges against the applicant proved beyond a reasonable doubt.  In my judgment, the judge's reasoning cannot be faulted and he was fully justified in accepting the evidence of the victim against the applicant on all the three charges. 

11.The applicant's written submissions handed up today raises various matters, but notably a statement of a person who was supposed to be his alibi witness is annexed.  However, the applicant did not give evidence before the judge, nor did he call any witness, including the alleged alibi witness.

12.Nothing that has been said by the applicant to this Court, partly orally and partly in his written submissions, can detract from my view that the conviction is safe and satisfactory. 

13.In passing sentence, the judge stated that despite the fact that the applicant punched the victim once on the neck and once on the face, no weapon of any sort was used.  He treated the robbery as an unarmed one and referred to the case of HKSAR v Ting Chiu [2003] 3 HKLRD 378 for guidance.  He did not take the fact that the applicant was together with three others as an aggravating factor because one of them had asked the applicant not to assault the victim and another had returned $100 to the victim at the latter's request.  He also took into account that the offences were committed in quite an unpremeditated manner and the assault had little effect on the victim save causing him some pain. 

14.The applicant was not a man with a clear record.  I see nothing wrong in principle for the judge to have adopted a sentence of 30 months' imprisonment for the robbery, 18 months for the blackmail and 12 months for the offence of claiming to be a member of a triad society, and imposing the same on the applicant.  Taking totality into account, the judge imposed a global term of 3 years' imprisonment on the applicant.  The sentence can in no way be said to be wrong in principle or manifestly excessive. 

15.In the circumstances, the application against conviction and that against sentence are both dismissed.  The applicant's request for legal aid is accordingly refused.

16.I remind the applicant that he is entitled to have the application determined by the Court of Appeal by making a fresh application within 14 days of today.  I warn him that if the Court of Appeal, when dealing with the fresh application, is of the view that it has no merit, it can order a loss of time that he has spent in custody to be taken away from the counting of the service of the term of his imprisonment, and that the Court can also increase sentence.

Mr Robert K Y Lee, SGC of the Department of Justice, for the Respondent

Applicant, MOHAMMAD Azam, in person