HKSAR v. Prince Mahmud and Another

HCMA855/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 855 OF 2007

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BETWEEN

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Before : Deputy High Court Judge Geiser in Court

Date of Hearing : 6 December 2007

Date of Judgment : 6 December 2007

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J U D G M E N T

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1.The two appellants in this case were convicted on 10 August 2007 of a single charge of robbery contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210, Laws of Hong Kong.

2.They were sentenced to a term of 2 years’ imprisonment; in respect of the 2nd appellant, by virtue of the fact that by committing the presence offence he was in breach of a suspended sentence which was ordered to be activated and run concurrently with the 2 year term.

3.Both appellants have filed notices of appeal against conviction and sentence on 21 August 2007.

4.The 1st appellant, in a letter to the court dated 27 November 2007, has specified his grounds of appeal against conviction, and in addition I have listened to what each appellant has submitted to me this morning in support of their respective appeals.

5.The evidence the prosecution sought to rely on in the lower court came predominantly from the victim, PW1, Mr Noor Ahmed.  He gave evidence to the learned magistrate that at about 9.45 pm in the evening of 13 June 2007, he, the victim, met his friend at the location in question, where they had some food and chatted.  Later, the appellants, both of whom the victim knew, approached.  He, the 1st appellant, said that he had something to tell him, so the victim followed the two appellants to elsewhere in the park, where three unknown males were present.  The 1st appellant and the victim sat down on one side of a bench and talked whilst the 2nd appellant and the other three males sat on the other side of the bench.

6.The victim said that when he asked the 1st appellant if there was nothing else to talk about, could he leave, the 1st appellant grabbed his right arm and the 2nd appellant punched him twice with a hard object like a screwdriver onto his arm.  The 2nd appellant also hit the victim’s back, and the other three males joined in the assault, during the course of which the appellants shouted “Give me your wallet.”

7.The assault continued with the victim being hit on his back by three of the males, and at one stage he was pulled up by the collar by the 1st appellant whilst the 2nd appellant hit his back, causing his T-shirt to tear.

8.It was the 1st appellant who took the victim’s wallet from his pocket, which contained $3,000 cash and an Octopus card. 

9.After the assault, the three males and the two appellants fled.

10.It was suggested to the victim in cross-examination that he had framed the appellants due to a grudge that he had previously had with them which related to a dispute over dishwashing.  This was denied by the victim.

11.PW2 was a friend of the victim who was called to testify for the prosecution.  He answered PW1’s call for help.  PW1 related the incident to PW2, who found blood on the victim’s back, and assisted him in tending to his injuries.

12.A medical report was produced as Exhibit P1 which confirmed that the victim suffered two abrasions on his right arm, one abrasion over the dorsum of his right hand, an abrasion over his left forearm, and a 7 centimetre long abrasion over his back.

13.Neither appellant elected to give evidence, but a video clip on a mobile phone was played which simply purported to record a scene when both appellants were in PW2’s room.

14.In his letter to the court dated 22 November 2007, the 2nd appellant makes a number of points.  Firstly, “Unfortunately, the defence lawyer couldn’t play another video clip from the same mobile phone which proves there was a good relationship with PW1.”  This point gets the appellant precisely nowhere, because the point is that this video clip was never before the magistrate and, in any event, whether the appellants were on good terms with the victim previously is neither here nor there and quite irrelevant to the issue of whether the two appellants took part in this robbery.  Secondly, “the cash and the Octopus card were common items to members of the public, and the fact that these were found on the appellants does not prove the robbery.”  This is quite correct, but the point is that the prosecution did not rely on the presence or otherwise of the money and Octopus card in order to prove this offence.  It is clear from the learned magistrate’s statement of findings that he based his conviction entirely on the question of credibility of the prosecution witnesses, particularly PW1.  Thirdly, “why would someone rob the victim when the amount in his pocket is more than the victim’s money?”  In addition, the 1st appellant says that he had two Octopus cards on him, one of which was empty.  Neither of these two matters take the appellants’ case any further and are unworthy of further comment.

15.The learned deputy magistrate in his statement of findings found PW1 and PW2 to be totally honest and reliable witnesses.  He accepted their evidence and pointed out that their evidence was so detailed and they were so unshaken in cross-examination that he believed them.  The magistrate had the benefit of seeing and hearing the witnesses give their testimony, and he was entitled to assess the evidence of the prosecution witnesses in the way that he did.

16.Both appellants were represented in the court below, and elected not to give evidence, nor to call any witnesses.  It was, however, put on the appellants’ behalf to the victim that he, the victim, had framed the appellants up.  The victim, as did the magistrate, rejected this. 

17.There is no merit in either appellant’s appeal against conviction, and I accordingly dismiss their appeals against conviction.

18.With regard to sentence, each appellant was sentenced to 2 years’ imprisonment.  The learned deputy magistrate correctly described this as a very serious charge.  The two appellants attacked the victim with three other people, in which a weapon or hard object of some description was used, causing injury to the victim. 

19.A lengthy custodial sentence was inevitable, and the two appellants may consider themselves to be extremely fortunate not to have been tried in a higher court.

20.Each appellant’s appeal against sentence is dismissed.

Representations:

Miss Peggy Lo, Government Counsel of the Department of Justice, for the Respondent

Both Appellants in Person