HKSAR v. Asim Nadeem

HCMA 686/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 686 OF 2011

(ON APPEAL FROM KCCC 2724 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 24 April 2012

Date of Judgment: 24 April 2012

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J U D G M E N T

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1.This Appellant wan convicted after trial in the Magistrates’ Court on a charge of robbery, the particulars of which were that he and others robbed the victim of his wallet, HK$20,000 in cash, a mobile phone and a watch.

2.The Magistrate sentenced him to 21 months’ imprisonment.  He now appeals against conviction only, having filed a Notice of Abandonment abandoning his appeal against sentence.

3.The perfected grounds of appeal filed against his conviction read:

“(1) The Learned Magistrate erred in applying the doctrine of ‘Recent Possession’.

(2) The Learned Magistrate failed to consider adequately or at all, the fact that PW1 failed to identify either the Appellant or D1 on an ID parade.

(3) The Learned Magistrate failed to consider adequately, or at all, the Appellant’s immediate admission that the 3^rd, silver, phone did not belong to him but to another.

(4) The Learned Magistrate failed to consider the alternative scenarios of either ‘Stealing by Finding’ or ‘Handling Stolen Goods’.

(5) The Appellant’s conviction is unsafe and/or unsatisfactory.”

4.In considering those grounds, I have admitted de bene esse the map produced on behalf of the Appellant as further evidence on appeal.  In my view, such further evidence does not really take the matter any further for the Appellant.  Having regard to all the circumstances, including how soon after the victim was robbed of his mobile phone it was found in the Appellant’s possession, the Magistrate was entitled to regard such possession as sufficient for the purpose of convicting the Appellant of robbery as charged.  He was entitled to convict of robbery rather than to acquit altogether or to convict only of a lesser offence.  Ground 1 fails.

5.Grounds 2 and 3 fail on the basis that the Magistrate did give those matters due consideration and was entitled to convict despite them.

6.Ground 4 fails for the reasons for which Ground 1 fails.

7.Ground 5 has nothing in it independent of the other grounds.  Like those other grounds, Ground 5 fails.

8.The appeal against conviction is dismissed.

Mr James McGowan, instructed by David Ravenscroft & Co, for the appellant

Ms Vivien Chan, of the Department of Justice, for the respondent