HKSAR v. Mohammad Afzal and Another

CACC401/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 401OF 2007

(ON APPEAL FROM DCCC NO. 210 OF 2007)

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

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

Before : Hon Tang VP, Yuen JA and Barnes J in Court

Date of Hearing : 16 April 2008

Date of Judgment : 16 April 2008

Date of Handing Down Reasons for Judgement : 23 April 2008

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

REASONS  FOR  JUDGMENT

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

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

1.This is an application for leave to appeal against conviction by both applicants Mohammad Afzal (“A1”) and Mujtaba Ghulam(“A2”).  The applicants were jointly charged with one count of conspiracy to commit blackmail and A2 was additionally charged with one count of theft. Both applicants pleaded not guilty before Deputy Judge William Lam in the District Court and were duly convicted after trial. A1 was sentenced to 16 months’ imprisonment while A2 was sentenced to a total of 24 months’ imprisonment.

2.We dismissed the application and we now give our reasons.

3.The prosecution case, in a nutshell, was that both applicants conspired to commit blackmail and each had uttered threatening words to the victim — a businessman selling mobile phones in Chung King Mansion.  A2 also stole approximately HK$51,500 from the victim. We adopt Deputy Judge Lam’s description in his verdict :

“PW1 Mr Mahmood Sajid testified that he was running a mobile telephones shop in Chung King Mansion in Tsimshatsui.  He had known both D1 and D2 for about 6 years.  Shortly after midday on the day in question, D1 came to PW1’s shop wanting to have a mobile phone for free, which PW1 refused, and D1 became very angry and ‘said a few bad words’ before leaving.  However at about 4 pm while PW1 was out acquiring goods for his shop, D1 telephoned PW1’s mobile saying ‘You refuse to give mobile phone to me, so now you have to pay me protection money $15,000 per month.  If you don’t agree to pay we will chop you, and place drugs in your shop and trap you’ then hung up.  When PW1 rang D1 back asking why he (PW1) should deserve this treatment, D1 ordered PW1 to return to the shop, which PW1 did within 5 minutes.  PW1 found his merchandise all over the floor, with D1 there loudly shouting ‘If you don’t pay protection money we will kill you and place drugs inside your shop and make a case against you’.  Soon a number of other people separated D1 from PW1 and D1 departed.  PW1 picked up his merchandise and was still counting cash in the drawer when D2 now appeared, swearing at PW1 and said ‘You have to pay money!’.  D2 then dug his hand into PW1’s drawer and grabbed a pile of cash, PW1 grabbed D2’s hand, but D2 punched PW1 and succeeded in running away with approximately $51,500.  After speaking to people PW1 reported the matter to the Police.  D2 returned about 3 hours later, shouting ‘Why did you report to the Police?  We will kill you for that!’ and brandished a beer bottle, but PW1’s ‘uncle’ (PW2) who was also a merchant in another shop on the same floor in Chung King Mansion, managed to push D2 away with the help of other people.

PW2 was in reality no relative of PW1’s but only another merchant in the same building.  PW2 turned out to be ‘an amnesic witness’.  PW3 was the police officer who took PW1’s witness statement and tendered for the Defence.”

Grounds of appeal

4.Mrs M. Panesar, counsel for both applicants, advanced two grounds of appeal.  Firstly, there were material discrepancies in PW1’s evidence in court and his first witness statement made on 16 August 2006 and the Deputy Judge failed to properly evaluate and resolve them, and secondly, there is a lurking doubt whether the offences were committed at all.

5.Mrs Panesar listed seven items of discrepancies, which she said were material, between PW1’s testimony in court and the description given in his witness statement.  These discrepancies are as follows :

6.Mrs Panesar submitted that the explanation given in court by PW1 for the discrepancies, such as that he was not fluent in English; or that the contents of the statement was a “general topic” and “not his true statement”, are false.  Some of the reasons she gave to support this contention are as follows :

(a)  PW1’s stated dialect on the statement was “English”;

(b) the statement was read over to him in English upon conclusion; and

(c) PW1 was less than frank when he failed to pick out “Tiger” at an identification parade when in the statement both culprits were described to be “of Tiger’s gang”, and PW1 in court admitted he had known “Tiger” even longer than the two applicants.

7.Mrs Panesar submitted the two versions were so different that they could not be reconciled, notwithstanding PW1’s allegation of poor English language skill or confusion at the time.  The Deputy Judge had failed to resolve these discrepancies entitling the appeal court to interfere with the fact-finding.

8.Further, Mrs Panesar submitted the Deputy Judge’s failure to evaluate the discrepancies and resolve them led to a lurking doubt in this case and the applicants should have been given the benefit of the doubt.

Respondent’s reply

9.Mr Cheung Wai Sun, Deputy Principal Government Counsel, together with Ms Winnie Lam, Senior Government Counsel (Acting) in their written submission submitted that PW1’s witness statement, from the defence point of view, is a previous inconsistent statement at best.  The statement was not evidence of the truth of what was contained in it — it only goes to credit. The Deputy Judge was aware of the inconsistencies and found that they did not erode into PW1’s credibility.

10.The respondent accepted the Deputy Judge had misunderstood the issue in relation to “unknown males”’ when the Deputy Judge said it was “explained by the fact that even the Defence accepts there were ‘quite a few people present’ and who were involved at the time”, and that there was “no suggestion that PW1 had known everyone at the scene”.  The respondent pointed out, however, that PW1 had explained in court he did not say to the police that the culprits were “unknown”, but that it was the police who had put down the details.  Further, the culprits’ nicknames “Johnny” and “Pa Kei Fai” were already mentioned by PW1 in the statement.

11.The respondent submitted that some of the discrepancies are immaterial, such as, “When the incident started?”, “How many incidents?” and so on. PW1 had given his explanation which was accepted by the Deputy Judge.  The Court of Appeal should not interfere with a finding of facts save in exceptional circumstances.  The respondent further submitted that there was no lurking doubt in this case.

Discussion

12.Having perused the transcript of the hearing, it is clear that the discrepancies were brought to the attention of PW1 and the Deputy Judge. The Deputy Judge has in turn dealt with the discrepancies (see paragraph 5 of the Verdict at page 18 of the bundle).  This is not a case in which the Deputy Judge has failed to evaluate them, it is rather whether he has evaluated and resolved them properly or sufficiently.

13.Mrs Panesar attacked PW1’s claim of his deficiency in his use of English.  What did PW1 say about his English then?  He accepted his English was better than people from Nigeria, South Africa, Kenya and Congo (transcript, page 31 lines L to Q).  However, his “reading ability” was not good :

“My English is not that well that I can read it myself and understand the content” (transcript page 37 lines F to G).

When Mr Christopher Grounds (counsel for the applicants at the trial) asked PW1 whether certain entry in the statement was correct, PW1 answered : 

“Yes, you are reading it for me, maybe it’s right” (transcript page 44 line O)

14.It was PW1’s assertion that the police had written things he did not say, that his English was not that good; that he was confused at the time and did not want to give a statement; and that there was no interpreter to assist him.  He further explained that he was only giving the police a general description of what had happened. He did not give the police such details as recorded in the statement.

15.We found no substance in Mrs Panesar’s reference to the “dialect” of PW1 being “English”.  Clearly that was written by the police officer who merely put down the language used to record the statement.  In the absence of an interpreter and when PW1 could converse in English, English was then used as the medium.  The depiction of English being the “dialect” does not reflect on PW1’s English standard being good or not.

16.The Deputy Judge had dealt with the discrepancies in detail in paragraph 5 of his verdict. His findings, save for subparagraph (4), cannot be faulted.

17.Subparagraph (4) dealt with the issue of “unknown males”, which the respondent conceded the Deputy Judge had got wrong.

18.In accepting PW1’s evidence, the Deputy Judge would have inevitably accepted his explanation that he never told the police the two were “unknown males” or males unknown to him.  Was the Deputy Judge entitled to do so on the evidence before him?

19.No doubt the term “unknown males” was used in PW1’s statement.  PW1 was adamant that he had never said the culprits were unknown to him as he had known them for a number of years.  It is clear that neither PW1 nor the police officer was using his mother-tongue to converse.  Bearing in mind that even in the statement, the police had written down the nicknames of the two culprits (i.e. Johnny and Pa Kei Fai) supplied by PW1, and in view of the fact that the police officer concerned had put in the same statement that the two were to be recorded as “WP1” and “WP2” (wanted person one and two) — terms clearly not used by PW1, PW1’s assertion that he had never said the two culprits were unknown to him could not be shown to be so outlandish that the learned judge could not have accepted such an assertion as credible.

20.As to the other discrepancies, despite the valiant attempt on the part of Mrs Panesar to demonstrate how PW1 was a dishonest or unreliable witness, the fact of the matter was the Deputy Judge was fully aware of this line of attack when he evaluated the evidence of PW1.  He is entitled to come to the conclusion he reached.  This is not a case in which the conclusion is against the weight of the evidence, nor is it one where the learned judge had not considered or evaluated the evidence properly.

21.It is indeed an admitted fact that PW1 failed to pick out “Tiger” during an identification parade.  In the absence of any evidence showing under what circumstances PW1 was asked to make the identification and why he had failed to pick out “Tiger”, this Court cannot used such failureto infer that PW1 was dishonest, as suggested by Mrs Panesar.

22.There was no lurking doubt. The verdict was neither unsafe nor unsatisfactory and we dismissed the application.

Mr Cheung Wai Sun, DPGC and Miss Winnie Lam, Ag SGC of the Department of Justice, for the Respondent

Mrs Panesar Mahinder M., instructed by Messrs Francis Kong & Co., (DLA), for the 1^st and 2^nd Applicants