HKSAR v. Khan Ashraf

Case No.CACC 360/2009

Court

Court of Appeal

Date10 Aug 2010

Judge—

Case Document

100%Judiciary

CACC360/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 360 OF 2009

(ON APPEAL FROM DCCC 497 OF 2009)

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BETWEEN
	HKSAR	Respondent
	and
	KHAN ASHRAF	Applicant

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Before : Hon Cheung, Yuen JJA and McMahon J in Court

Date of Hearing : 10 August 2010

Date of Judgment : 10 August 2010

Date of Reasons for Judgment : 17 August 2010

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REASONS FOR JUDGMENT

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McMahon J (giving the reasons for judgment of the Court) :

1.The applicant was convicted, after a trial before Deputy Judge Casewell in District Court of an offence of blackmail, contrary to sections 23(1) and (3) of the Theft Ordinance, Cap. 210, of an offence of assault occasioning actual bodily harm, contrary to Common Law and of an offence of carrying an imitation firearm with intent to commit an arrestable offence, contrary to sections 18(1) and (3) of the Firearms and Ammunition Ordinance, Cap. 238.

2.He was sentenced to 2 years 6 months’ imprisonment for the blackmail offence; to 12 months’ imprisonment for the assault and to 3 years 9 months’ imprisonment for the firearms offence. All sentences were ordered to be severed concurrently, resulting in a total sentence of 3 years 9 months’ imprisonment.

3.The applicant was refused leave to appeal his conviction and his sentences on 23 April 2010 by Hartmann JA, and now renews those applications before us. He is unrepresented.

4.His ground of appeal against conviction is simply that he did not commit the offences. That was elaborated in his submissions as a complaint that the judge was wrong to accept the evidence of the primary prosecution witness (PW1) and to reject the applicant’s evidence. His ground of appeal against sentence is that it was “too long” which we take to mean manifestly excessive.

Convictions

5.The prosecution case was that the applicant, a Pakistani national resident in Hong Kong, lived in a village in the New Territories where he carried on a scrap metal business.

6.The victim of the offences (PW1) was an automobile dealer who carried on his business in the same part of the New Territories. The applicant and PW1 knew each other. In the afternoon of 6 February 2009 PW1 was driving in the area on the way to his car yard when the applicant signalled him to pull over. PW1 did so and the applicant came up to PW1’s car and got in. The applicant then asked PW1 for $1,500 for the purpose of licencing his own car, but PW1 refused the request. The applicant got out of the car and PW1 drove on to his car yard.

7.Shortly afterwards PW1 received a text message on his mobile telephone from the applicant’s mobile telephone which was in these terms :

“Imran I told you to give me 3000 every month if you do not give money today I will kill you and your family”

8.Shortly after that the applicant arrived at PW1’s office and again made a demand for money. PW1 refused and the applicant produced an air-pistol from a paper bag he was carrying and threatened PW1 with it. When PW1 continued to refuse the applicant’s demands for money the applicant hit PW1 on the head with the pistol, causing bruising and an abrasion. PW1 fought back and eventually subdued the applicant and called the police.

9.The applicant gave evidence to the effect that he belonged to a minority Muslim sect, and that over several days preceding the offence he and PW1 and others, who did not belong to that sect, had discussed some of the religious differences they had. The applicant said that on 6 February while he was at home he received a phone call from PW1 who asked him to come downstairs and get into PW1’s motor car. The applicant did so and they drove to PW1’s car yard. After he had waited there for some considerable time while PW1 came and went, two young men came into the premises and together with PW1 forcefully restrained the applicant. His head was covered and he was accused of becoming a Christian. A pistol was placed in his hand and he was told to pull the trigger. Threats were made against his family. Eventually the two young men left and PW1 took him out into the car yard. That was when the police arrived.

10.The primary issue before the judge was one of credibility. There were no witnesses to the events the subject of the charges other than the applicant and PW1.

11.We bear in mind the judgment of the Full Court of the then Supreme Court in R v R.E. Low [1961] HKLR 13 where Blair-Kerr J said in the course of his judgment at page 82 :

“... an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended upon the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable.”

That statement of the law has since been cited with approval in this court on a number of occasions.

12.In the present case, regarding the credibility of PW1, the judge’s finding was expressed in the following terms :

“… There were factors that supported PW1’s evidence. He was injured. The injuries were consistent with his account of being assaulted by the defendant with the pistol, especially with the butt of the pistol, as he alleges. The text on the phone is also consistent with the blackmail and demands for money.”

and regarding the credibility of the applicant’s version of events, in these terms :

“55. I also found this [to] be, as I say, unbelievable that they would do what the defendant alleges. I have no doubt that pious Muslims may be grieved by such teachings and beliefs but I do not believe for one minute that they would consider going to such strange and unnecessary lengths to frame up the defendant. There are many simpler ways in which the defendant’s beliefs could be dealt with.

56. In any event, having heard the defendant give evidence about what he says happened, and especially what he says happened at the office, I found his account could be characterisedby the words bizarre, exaggerated and lacking in credibility.

57. I also found it was obvious the defendant had crafted his evidence around certain facts, especially the CCTV capture, where his oral evidence before the court mirrored the times in the capture down to the minute, and the defendant’s evidence had the hallmarks, in my view, of a manufactured account.

58. I did not believe that the first prosecution witness would have injured himself or written text on the defendant’s phone to frame him up. I found the defendant’s evidence complex and unreasonable. I was sure he was untruthful and I rejected it.”

13.In arriving at his conclusions regarding the credibility of the applicant the judge took into account that there was evidence from CCTV tape produced at trial, relating to the day of these events, of a motor vehicle similar to that owned by PW1 being driven into the applicant’s village and stopping nearby the applicant’s house. That evidence was relied upon by the defence as supporting the applicant’s case of PW1 picking him up in his motor vehicle before driving him to PW1’s car yard.

14.Regarding that evidence the judge said :

“67. I did note, firstly, that there was no evidence that it was [PW1’s] car. There was no number plate that could be discerned from the capture. There was no evidence that [PW1] was driving it. He had said he had driven the grey Mazda earlier that day. What it was was simply a coincidence of the same type of vehicle being driven in and out of the village on that day.

68. That fact I found in itself was not sufficient to cause me to doubt that the first prosecution witness was truthful in his account of how he had met the defendant on that day and what had happened between them at PW1’s place of business in the afternoon of that day. I was sure that PW1 had told me the truth about that.”

15.On the evidence before him we think that to have been a reasoned conclusion, and one to which the judge was entitled to come.

16.A final aspect of the defence case consisted of a witness, Mr Khan Maboos (“DW2”) who was called simply to contradict PW1’s evidence that he had not met the applicant on days prior to the incident, as the applicant alleged. It was the defence case at trial that DW2 had seen the applicant, PW1 and others together in the applicant’s village discussing religious matters.

17.After pointing out in his summary of the witnesses evidence that DW2 had given inconsistent estimates of when the meeting had taken place, the judge rejected his evidence on the basis also that it was given simply to support the applicant’s case, without regard to its truthfulness. Again, although the reasons given on this occasion were spartan, it was quite plain that the judge had considered this witnesses evidence in the context of the case as a whole and had, in that context, properly rejected it.

18.One last matter was raised, and for the first time, at the hearing of this application. The applicant asserted that those representing him at trial had failed to properly conduct his case by omitting to raise the issues, firstly, of the black car which had appeared on the exhibited CCTV tapes as stopping outside his home. That is plainly incorrect. The judge had referred to this in his reasons and the matter was clearly before him. Secondly, the applicant complains that his telephone call record was not produced, and that if it had been it would had shown PW1 contacting him on three occasions on 3 and 6 February and supported the applicant’s version of their relationship prior to the offences. But it was not in issue that PW1 and the applicant knew each other and this evidence would have taken matters little further, particularly given the judge’s conclusion that the applicant had “machined” the details of his case; see paragraph 57 of the reasons for verdict extracted above. In any event, not calling such evidence was well within the discretion of counsel representing the applicant at trial.

19.No other substantial complaint was able to be advanced by the applicant, and in our view the reasons given by the judge for the conviction of the applicant on the three charges were compelling. There was nothing unsafe in those convictions and the application for leave to appeal conviction is dismissed.

Sentence

20.The applicant simply asserts the totality of his sentence was “too long”. We disagree. The firearm offence alone warranted a starting point of 5 years’ imprisonment : see AG v Lam Wing Kwong [1993] 2 HKCLR 227 and HKSAR v Chen Peihong, CACC479/2004.

21.The judge appreciated that to be so, but given a number of mitigatary factors; the applicant’s clear record, the offences being out of character, the assault being relatively minor and the fact the imitation firearm was defective, he then reduced the starting point for the firearm offence considerably and more than generously.

22.We might add that as a matter of principle the judge was entitled to regard the blackmail offence as being, in part, independent of the other offences and therefore warranting a partially consecutive sentence. In not taking that approach the judge was again generous, though we do not propose to re-consider the applicant’s sentence, unrepresented as he is, and given the judge’s careful consideration of the mitigatory factors available to the applicant. There is no merit in the applicant’s complaint concerning sentence and this application is also dismissed.