HKSAR v. Mohammad Amjad

CACC 423/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 423 OF 2011

(On Appeal From District Court Criminal Case No. 602 of 2011)

____________

BETWEEN

____________

Before : Hon Cheung, Yuen and Chu JJA in Court

Date of Hearing : 17 August 2012

Date of Judgment : 17 August 2012

Date of Reasons for Judgment : 20 September 2012

____________________________

REASONS FOR JUDGMENT

____________________________

Hon Cheung JA (giving reasons for judgment of the court):

1.The applicant was convicted after trial by H H Judge Douglas Yau of the offence of robbery, contrary to section 10 of the Theft Ordinance (Cap. 210) and was sentenced to imprisonment for five years and six months. He applied for leave to appeal against conviction (represented by Mr. P Y Lo) and sentence (acting by himself). We dismissed the applications at the conclusion of the hearing. We now give our reasons.

Facts

2.On 23 April 2011 at 3.20 a.m. a taxi driver, PW1, was robbed by four passengers in his taxi of his mobile phone and his bag which contained his properties.  He picked up the passengers whom he described as South Asian males outside Fung Ting Court in Yuen Long at about 3.10 a.m. and he was robbed about ten minutes later when the taxi reached Shui Tau Tsuen which was the destiny of the passengers.  The robbers fled and PW1 immediately made a report to the Police.

3.The Police arrived and later conducted a search in the vicinity at about 4.35 a.m.  At about 4.50 a.m., the Police found the applicant (who was the 1^st defendant at the trial) together with the 2^nd defendant hiding in a bush in Chi Ho Road.  This was about 1000-2000 metres from the place where the robbery took place.  PW1’s phone was found from the applicant’s trouser pocket while PW1’s bag was recovered at a nearby bush where the two defendants were found.  PW1 identified the 2^nd defendant as one of the robbers but he could not identify the applicant.

4.PW2, a Police officer, and his fellow officers found the applicant and the 2^nd defendant in the bush.  PW2 questioned the applicant and found PW1’s phone in his trouser pocket.  When PW2 asked the applicant under caution how he obtained the phone, his reply was that the phone belonged to him.  Other Police officers later found the bag nearby.

5.The Police later conducted a video recorded interview with the applicant.  The applicant said that he left his home at 4.50 a.m. to do exercise at a place nearby.  After walking for 10-15 minutes, he found the mobile phone on a pedestrian bridge.  He intended to hand it to the Police and later when the Police arrived, he handed it over to the Police.  He was arrested at the place where he picked up the phone.  He was there for 15-20 minutes with the 2^nd defendant doing exercise when the Police arrived.  He asked the 2^nd defendant to join him by calling out his name when he walked past his home on his way to exercise.  He also had another telephone with him which belonged to his girlfriend.  He denied that he had taken a taxi that morning. 

6.The applicant gave evidence.  He said that while he was exercising on the bridge, a Police vehicle arrived and the Police officers told him to come down from the bridge. He walked down to meet them.  When the Police asked what he was doing there, he handed them his identity document as well as the two phones.  He had earlier picked up the phone when he was exercising on the bridge.

7.The 2^nd defendant who pleaded guilty to the charge of robbery gave evidence for the applicant. He admitted that he took part in the taxi robbery with three other persons. The applicant was not one of them.  One of the 2^nd defendant’s friends robbed PW1 of his phone and dropped it on the bridge when he was running away after the robbery.  The phone was broken.  Later, the 2^nd defendant was sitting in a park when the applicant called him on the phone to join him for exercise.  He agreed and joined him on the bridge.

The Judge’s finding

8.The Judge disbelieved the evidence of the 2^nd defendant and the applicant.  This is the Judge’s finding :

‘ 82. I find D2 a dishonest and incredible witness. His evidence contradicted that of Dl who said he called out to D2 to go exercising while walking past D2’s house. It is D2’s evidence that Dl called him over the phone to ask him to go exercising.

83. I also find D2’s story inherently improbable.  D2 had just committed robbery in the vicinity.  The bridge was even on his escape route.  Yet just shortly after the robbery he decided to go back to the bridge to exercise. Only the most stupid or the most daring robber might choose to do that.

84. But I find that D2 is neither, he was simply lying about it.  D2 is obviously lying in court about the exercising with Dl to try to support Dl’s story.  D2 had clearly also forgotten about the summary of facts that he had admitted to about how he was hiding in the bush.  It goes directly against D2’s credibility.

D1’s evidence

85. Given that I have found D2 to be lying about his exercising with Dl, there is nothing to support Dl’s story except for Dl’s own words.  I find that his are not truthful words.

86. I find that the fact that he had never mentioned in his video recorded interview, which he himself had confirmed as true and accurate, about how he was beckoned by a fat Police officer to come down from the bridge and then walked to the關帝廟[Kwan Di Temple] sign shows clearly that he had made up that story afterwards.

87. I find that the phone was in one piece when the Police officer recovered it from Dl’s pocket, minus the SIM card.  I find that Dl did say to PW2 that the stolen watch [Note: should be phone] belonged to him under caution.

88. I find that D1 never had the intention to hand over the phone to the Police in the manner he had described.

Robbery

89. I have already rejected Dl’s evidence about how he would wake up at 4:30am every morning to go exercising since it is clear that he is making this story up to explain away why he was found on the street with D2 squatting and with a stolen phone in his pocket.  Of course lying does notequate guilt, even if Dl lied about how he came to be in possession of the stolen phone, it does not automatically mean he is guilty of the robbery.

90. On the one hand, there is no direct evidence that Dl had been in the taxi at the time of the robbery.  PW1’s descriptions of the appearance of the robbers are simple and inconclusive.  The only relevant description is that all the robbers were South Asian males.

91. On the other hand, the time of the robbery was around 3:20am.  Police started the vicinity search at 4:35am, one hour and 15 minutes later.  Dl and D2 were spotted another 15 minutes later at around 4:50am.  In all, just 1 and a half hour had passed from the start of the robbery to when Dl was found squatting with D2 by the road side, which was just about 1000 to 2000 meters from the scene of the robbery according to PW2.  There was plenty of time for Dl and D2 to cover the relatively short distance.

92. There is also the evidence of Dl’s recent possession of the stolen phone as well as the discarded black shoulder bag that was found just a few meters from where he and D2 were squatting.

93. So the facts are like this.  It was in the wee hours of the morning.  D1 was together with the robber D2.  They saw the marked Police vehicle coming towards them and squatted to avoid detection.  They were only about 1-2km from the scene of the robbery.  It was just about one and a half hour after the robbery.  D1 is a South Asian male, which matched the description of the ethnicity and gender by PW1 of the robbers.  D1 had the phone of the robbery victim in his pocket.  D1 and D2 were just 1-2 meters away from the bag of the robbery victim.  D1 lied to the Police officer about how the phone belonged to him.

94. I find that based on all the circumstantial evidence, I can and I do draw the irresistible inference that D1 must have been one of the robbers who had taken part in the taxi robbery and I convict D1 of the charge accordingly.’

Factors relied upon by the Judge

9.Mr. Lo argued that the Judge relied on the following facts to convict the applicant and each of these facts is not supportive of guilt :

1)  It was in the wee hours of the morning.

2)  The applicant was together with the 2^nd defendant, the robber.

3)  They saw the marked Police vehicle coming towards them and squatted to avoid detection.

4)  They were only about 1-2 km from the scene of the robbery.  This appears to have been viewed in the light that just one and a half hours had passed from the start of the robbery to when the applicant was found squatting with the 2^nd defendant.

5)  The applicant is a South Asian male, which matched PW1’s description of the ethnicity and gender of the robbers.

6)  The applicant had the phone of the victim in his pocket.

7)  The applicant and the 2^nd defendant were just 1-2 metres away from PW1’s bag.

8)  The applicant lied to the Police officer about how the phone belonged to him.

10.Mr. Lo argued that,

1)  The time of the day is not probative of guilt.  Presence in the street in the early morning was at most not usual.

2)  The applicant being found together with the 2^nd defendant was also not probative of guilt.

3)  It was a wrong conclusion to draw that the applicant and the 2^nd defendant were squatting for the purpose of avoiding detection.  Alternatively, they might simply have been doing this to avoid trouble with strangers.  The applicant was a refugee and torture claimant from Pakistan.

4)  The distance from the place of robbery and the time lapsed were not so unusual or suspicious as to trigger the application of the ‘recent possession’ principle.

5)  It was unhelpful to refer to the ethnicity of the applicant to infer guilt.  The term ‘South Asian’ embraces many nationalities, ethnicities, origins or colours.

6)  This only showed the applicant had PW1’s phone.

7)  In the absence of evidence of the applicant’s knowledge of the presence of the bag found nearby, it was erroneous to rely on this factor.

8)  The Judge had treated the lie made by the applicant i.e. ‘the phone belonged to him’ as probative of guilt when he should have further considered that there was no innocent motives for the lie.

Our view

11.In our view the applicant was properly convicted on the circumstantial evidence of this case.  The overview of the case is that the applicant and an identified robber were found by the Police at dawn in a bush near the scene of the crime about one and a half hours after the robbery.  The applicant had the stolen phone with him and PW1’s stolen bag was also found nearby.  The submission that the applicant was in the bush to avoid trouble with strangers clearly is speculative when the applicant’s own case was that he met the Police when he came down from the bridge and not that the Police found him in the bush.  In any event, the 2^nd defendant’s admission that he and the applicant were found in the bush clearly allowed the Judge to infer that they were hiding from the Police when they were found, otherwise what was the point of squatting in some hidden area?  The term ‘South Asian’ is commonly used in Hong Kong in recent years to refer to the population originated from the Indian subcontinent and Nepal.  In this case, the reference to the robbers as ‘South Asian’ men merely narrowed the ethnic origin of those who took part in the robbery and to exclude Chinese men from being among them.  The applicant being a Pakistani fits the description of the robbers (or at least does not exclude him) and his presence with the 2^nd defendant, an identified robber, clearly are matters upon which inference can be drawn that he also took part in the robbery.

12.The PW1’s phone found in the applicant’s pocket incriminated him.  The Judge being the arbitrator of fact clearly was entitled to reject the applicant’s evidence that he had handed the phone to the Police and told them that he had picked it on the ground.  The Judge’s finding that he lied about the ownership of the phone was another piece of evidence which, together with other evidence, allow inference of guilt to be drawn.  The Judge being a professional judge was not required to spell out his thought process as if he was directing the jury on the issue of lies.  The presence of the stolen bag nearby was another piece of supporting evidence that the applicant together with the 2^nd defendant were two of the robbers who robbed PW1.

Recent possession

13.The principle of ‘recent possession’ is, as this Court observed in HKSAR v. Choi Heung Yee [1995 - 2000] HKCLRT, at paragraph 12, per Chan CJHC (as he then was) :

‘ …… merely a principle concerning how a judge or jury makes inferences from facts. It means that, where there are reasons for casting doubt or where there is a need for an explanation, if a defendant has not provided an explanation or has provided an explanation which is wholly unbelievable, the judge or jury may infer from the lack of a credible explanation that the defendant had knowledge of the offence in question and may then infer from this that he is guilty.’

See further HKSAR v. Cheng Chi Wai (鄭志偉) CACC 94/2011 and CAAR 2/2011 where this Court (Yuen JA, Beeson and McWalters JJ) reviewed the authorities in this area and restated that this principle is merely an example of the drawing of inference.  This is precisely what the Judge had done in the present case.

14.Mr. Lo further drew to our attention the majority decision of the Supreme Court of Canada in R v Kowlyk [1988] 2 SCR 58 at 71-72 that :

‘ Further where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.’

15.Amongst the cases referred to by the Supreme Court of Canada was Russell v R (1983) 32 CR (3d) 307, where the Nova Scotia Court of Appeal dismissed the argument that the application of the doctrine of recent possession infringed the right to the presumption of innocence under section 11(d) of the Canadian Charter of Rights and Freedoms 1982 :

‘ These decisions make it abundantly clear that the inference arising from the unexplained possession of stolen goods is simply one of fact and does not alter the fundamental burden of proof on the Crown to establish guilt of the accused beyond a reasonable doubt. Viewed in that light the inference does not offend the presumption of innocence under the Charter of Rights and Freedoms.’ (pg 316)

16.The principles stated in the Canadian cases were not disputed by Mr. Leung, counsel for the respondent. 

17.In our view the emphasis is plainly that it is not permissible to draw inference on the basis of recent possession alone.  In the present case the prosecution had established by other facts as well that the applicant had committed the robbery.

Error in rejecting the defence?

18.Mr. Lo further argued that the Judge erred in rejecting the defence by relying on the fact that the applicant did not mention in the interview that he was asked by the Police to come down from the bridge, when the line of the questioning of the applicant during the video recorded interview was on how the applicant handed the mobile phone to the Police officers.  The applicant was never asked during the video recorded interview how he and the Police officers first made contact at the scene.  The questioning officer simply asked how the phone was handed to the Police.  It was only towards the end when the applicant was asked what else he wished to say did he state on his own accord that he walked to the Police and willingly handed over the mobile phone without any intention of running away.  In our view this was not the only reason relied upon by the Judge.  The 2^nd defendant’s admission that he and the applicant were found by the Police at the bush was a matter that the Judge was entitled to take into account.

Knowledge of the applicant

19.Mr. Lo further argued that the Judge failed to make a finding that the applicant knew the phone was stolen property.

20.In our view, the Judge must have made such a finding when he rejected the applicant’s defence that he picked up the phone on the bridge.  The issue of knowledge does not arise when the Judge found that he was one of the robbers.

Alternative finding of handling stolen goods

21.Mr. Lo argued that the applicant’s possession of the phone was more consistent with handling than robbery.

22.In our view the following discussion in Archbold Hong Kong 2012, paragraphs 22-94 is instructive :

‘ In R v Smythe, 72 Cr App R 8, CA, the court stressed that it is a misconception to think that recent possession is a material consideration only in cases of handling. It adopted the following passage from Cross on Evidence, 5^th edn, p 49 (now 9^th edn, p 38):

“If someone is found in possession of goods soon after they have been missed, and he fails to give a credible explanation of the manner in which he came by them, the jury are justified in inferring that he was either the thief or else guilty of dishonestly handling the goods, knowing or believing them to have been stolen...The absence of an explanation is equally significant whether the case is being considered as one of theft or handling, but it has come into particular prominence in connection with the latter because persons found in possession of stolen goods are apt to say that they acquired them innocently from someone else. Where the only evidence is that the defendant on a charge of handling was in possession of stolen goods, a jury may infer guilty knowledge or belief (a) if he offers no explanation to account for his possession, or (b) if the jury are satisfied that the explanation he does offer is untrue.”

Every case depends on its own facts.  There is no magic in any given length of time. However, it is submitted that in many cases where the only evidence is that of recent possession, it will be impossible to exclude the possibility that the defendant was merely a receiver of the stolen property: in such cases, a count of burglary ought not to be left to the jury.  However, that applies where recent possession is literally the only evidence.  The reality is that in the great majority of cases there are other pieces of evidence that tend to point the case one way or the other.  It would be impossible to compile a definitive list of circumstances that might be relevant.  They will include, however, the time and place of the theft, the type of property stolen, the likelihood of it being sold on quickly, the circumstances of the defendant, whether he has any connection with the victim or with the place where the theft occurred, anything said by the defendant and how that fits in or does not fit in with the other available evidence.’  (emphasis added)

23.In the present case there were other factors which entitled the Judge to find the applicant committed the robbery and did not merely handle the stolen phone.

Sentence

24.Violence was used in the early morning in a robbery of a taxi driver who sustained injury.  There were four robbers and $1,200 stolen from PW1 was still missing.  The sentence imposed by the Judge was within the range of sentence identified in the R v Mo Kwong Sang [1981] HKLR 610 guideline and the cases reviewed in HKSAR v. Singh Sandeep & another CACC 112/2004.  The rationale is to protect vulnerable taxi drivers and the customary starting point for the sentence is between five and six years’ imprisonment.

Conclusion

25.Accordingly the applications were dismissed.

Mr David Leung, SADPP of Department of Justice, for the respondent

Mr P Y Lo, instructed by Director of Legal Aid, for the applicant (re: conviction)

The applicant appeared in person (re : sentence)