HKSAR v. Singh Harvinder Pal

DCCC 490/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 490 OF 2012

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REASONS FOR VERDICT

1.The defendant pleaded not guilty to a charge of assault with intent to rob. The alleged victim is a sex worker referred to in the charge as Miss X.

2.It was not in dispute that at about 10.45pm on 20  April 2012, the defendant went to a room used by Miss X in Champagne Court, Kimberly Road, Tsim Sha Tsui  (the Room) and was provided with sexual services for which he paid HKD500. It was alleged that an argument started over Miss X’s insistence on the defendant wearing a condom and that the defendant became annoyed. It was alleged that Miss X offered to repay the defendant HKD500 but after doing so he became violent, led her forcefully to  a drawer in which she kept her earnings and demanded more money.

3.Miss X said that at that stage she saw on the  CCTV screen inside her room  that one of her sex worker neighbours was in the corridor outside her room and she cried out for assistance. Miss X claimed that she managed to get out of the room. The police were later called to the premises where they arrested the defendant.

4.The defendant denied attempting to steal from Miss X. He said that he became involved in an argument with Miss X when she refused to provide unprotected sex unless he paid an extra HKD1000 and he demanded back his initial payment of HKD500. He denied assaulting Miss X or trying to obtain any money from her cash drawer.

Prosecution Evidence

Miss X – PW1

5.Miss X  said that she is 36 years of age. She was born on the mainland but came to Hong Kong in 2004. She has an 8-year old child born in Hong Kong. She has been married to a Hong Kong resident since 2004 but they are currently living apart.

6.Miss X said that on the night in question she had provided services to  12 customers before the defendant arrived at her door with another male whom she thought to be Filipino. CCTV footage recorded from cameras on the ground floor of the premises and inside the lift showed that his man was probably of South Asian origin.

7.Miss X stated that at the doorway of her room a price of HKD500 was agreed and that when he entered the defendant gave her a HKD500 note which she put in the drawer of a wardrobe in the corner of room where she kept her earlier earnings.

8.Miss X said that she bathed the defendant in the ensuite shower and afterwards used a condom to perform oral sex. Miss X said they then had sexual intercourse during the course of which the defendant became soft so she resumed oral sex using a fresh condom. PW1 said that they then had sex and again the defendant became soft. Miss X said that the defendant took off the condom and put his hand on the back of her head and pushed her head forward for her to perform oral sex without a condom. Miss X said she refused and put another condom on the defendant. He again took it off and tried to make her engage in unprotected oral sex but she refused. Miss X said this happened 4-5 times.

9. Miss X said that the defendant then struggled with her using his hand to grab her neck near the throat. Miss X said that she struggled with him and tried to get away but he continued to grab her neck and slapped her face. Miss X said that she shouted out for help.

10.Miss X said that she was afraid he would strangle her and she gave him oral sex without a condom.

11.Miss X said that the defendant then suggested she could refund the money to him to cancel the transaction. She said that she said she would pay him back HKD300 and asked him to go. Miss X said the defendant agreed and then, whilst grabbing her neck, led her to the drawer where she kept her money. Miss X said that she paid him HKD300 but the defendant said it was not enough so she gave him a further HKD200. She said that the defendant then started yelling “money money” and she became very frightened but she could not free herself from his grip. Miss X said that she saw from the CCTV screen that one of her neighbours was in the corridor outside her room so she shouted out “robbery” and her neighbour banged on the door. Miss X said at that stage the defendant slightly released his grip on her and she managed to get away from him and run to the door, unlock it and run naked into the corridor. Miss X said that defendant was saying “sorry, sorry”. She said he was about to put on his clothing and intended to leave.

12.Miss X said that her neighbours closed the main door of the premises to prevent the defendant leaving and she ran back to her room to get dressed. She said one of her neighbours called the police. Miss X said the defendant then dropped the money on to the ground and she picked it up and put it on her bed.

13.In cross-examination Miss X agreed that she did not tell the police that she used 4-5 condoms whilst dealing with the defendant. She said that she was too frightened at the time. Miss X said that she put the condoms thrown on to the floor by the defendant in the rubbish bin before the police arrived at the flat.

14.Miss X disagreed that on the second occasion that the defendant failed to sustain his erection during intercourse she offered to relieve him using her hand. Miss X disagreed that the defendant asked her if she could remove the condom. She disagreed that she indicated to the defendant by using her 10 fingers that she wanted HKD1000 to perform unprotected sex. Miss X disagreed that the defendant paid her a further HKD500 note but she indicted that that was not sufficient and thereafter an argument ensued.

15.Miss X disagreed that the defendant never touched her neck. She disagreed that the only time he touched her was when he used his hands to touch her shoulders during intercourse.

16.Miss X disagreed that it was at this stage that the defendant asked for his money back but she only gave him HKD300. She disagreed that that was the full amount refunded by her and that it was this sum which the defendant threw on to the ground later.

17.Miss X disagreed that later she gave the defendant a glass of water, she said this was done by a neighbour as the defendant claimed he was unwell. Miss X disagreed that some of the water was spilt onto the floor and she later slipped on the wet ground and fell on her back. Miss X said it was one of her neighbours who slipped on the wet floor but she did not fall.

18.Miss X disagreed that when the defendant entered the room he paid her 5 HKD100 notes not a HKD500 note.

19.Miss X said the defendant was dressed when he first tried to leave her room. She said he got dressed after she left the room and rushed naked into the corridor.

20.It was pointed out that in her witness statement she told the police that after the main door was closed the defendant went back into her room to get dressed. Miss X said the situation was chaotic and she was only concerned for  her safety.

PW2 – PC2548 – Arresting officer

21.PW2 said he was one of the first officers to arrive at the scene. He said that when the door was opened the defendant walked quickly out of the flat and he stopped him from leaving.

22.PW2 said that Miss X told him that when the defendant had hold of her inside her room she told the defendant that she wanted to go to the toilet, he released her, she dashed to the door, opened it and shouted robbery. He said that Miss X told him that at that time she saw that there was another sex worker in the corridor outside her door.

Medical Report Ex P5

23.Miss X was seen by a doctor at 0601 on 21 April 2012. The report said she sustained an injury to her right forearm and alleged that she was assaulted by one man the previous evening.

The defendant

24.The defendant elected to give evidence and gave evidence similar to the case as put by his counsel.

25.In his evidence he alleged however that it was not he that paid money direct to Miss X but a Pakistani male who had escorted him to the premises. He said he also paid that man HKD200 for escorting him to the premises.

26.The defendant said that after the negotiations for Miss X to provide him with unprotected sex failed he asked loudly for his money back and she gave him back HKD300. The defendant said that he started to put on his clothes and asking for the return of the other HKD200 but she was shouting and trying to stop him getting dressed and he pushed her away twice. The defendant said that it was after that he left the room but was stopped from leaving the flat by two women who were in the corridor outside Miss X’s room.

Directions

27.I reminded myself that the burden of proof is on the prosecution to prove guilt beyond reasonable doubt. The defendant has nothing to prove. If I were to disbelieve his evidence that does not mean he is guilty of the offence. I have to consider the evidence I do accept and decide if that satisfies me of the guilt of the defendant to the required standard.

28.The defendant has a clear record which is relevant to the issues of credibility and propensity.

Evaluation of the evidence

29.The evidence of  Miss X was uncorroborated and there was no supporting evidence.

30.The court obviously has to exercise great care in evaluating the evidence of Miss X. If I were to reject the evidence of the defendant I had to be satisfied that the evidence of Miss X was sufficiently cogent to establish the guilt of the defendant to the required standard.

31.Much of her evidence was not in doubt. There was no issue that the defendant was the person to whom she provided sexual services on the occasion in question and that there was a dispute between them. On either version of events, Miss X had reason to be most unhappy with the very unreasonable behaviour of the defendant. Even on the defendant’s version of events, Miss X had carried out her end of the bargain and his demand for the return of his fee was most unreasonable.

32.However, certain aspects of her evidence gave me cause for concern.

33.The evidence given by  Miss X in court as to the circumstances in which she left her room was inconsistent with the version she gave to PW2 who arrived very shortly after the incident. In her evidence she claimed after seeing on her CCTV screen that her neighbour was in the corridor outside her room,  she shouted out robbery and  her neighbour banged on the door of her. Miss X said that it was this distraction which created the opportunity for her to slip the defendant’s hold upon her and to escape naked into the corridor. However she told PW2 that the defendant let go of her when she told him she wanted to go to the toilet and that she then ran to the door of her room, opened it and shouted to her neighbour who was in the corridor that she was being robbed.

34.I found the evidence of Miss X as to the circumstances in which the defendant left her room and as to when he got dressed to be confused and confusing. I bore in mind her assertion that the situation was somewhat chaotic and that she was very frightened.

35.Miss X maintained that the defendant had his hand on her throat and she feared he was going to strangle her. She said that later he had his arm round her neck as he led her to the cash drawer. Yet there were no marks or redness of any kind found on her neck nor did she complain of any such assault to the doctor who saw her a few hours after the incident.

36.Upon any view, the behaviour of the defendant was deplorable and I disbelieved much of his evidence. However, as I have stated above, that does not mean he is guilty of the offence charged.

37.Having considered the totality of the evidence I found that I could not be sure of the defendant’s guilt to the required standard and he is therefore entitled to be acquitted of the charge.