HKSAR v. Naseer Ramzan

DCCC 1115/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1115 OF 2012

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Reasons for Verdict

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1.Defendant, you have pleaded not guilty to a charge of robbery, contrary to section 10 of the Theft Ordinance.

2.It is alleged that on 26 August 2012, near the junction of Ferry Street and Pitt Street, Yau Ma Tei, Kowloon, you together with two persons unknown, robbed Zahid Anwar of one bag, one mobile phone, cash of HK$600, a Hong Kong Identity Card, a Home Visit Permit and a driving licence.

3.The facts can simply be stated that about 1 am on 26 August while Zahid Anwar, PW1, was waiting for his friend, Waheed Iqbal, PW2, on Pitt Street, Yau Ma Tei, he felt that someone was walking towards him from behind.  When he looked back, he saw three Southeast Asian men, including you, the defendant, rush towards him.  You then pushed him with both hands and the other two grabbed his shoulder bag containing his personal items and ran away.

4.PW1 gave chase and managed to grab your belt, subdued you and struggled with you on the ground and eventually having subdued you, he called the police.

5.Shortly after he had subdued you, PW2 his friend Waheed arrived at the scene.  It is alleged that PW2 then took over the telephone from PW1 and told the police the location where you were all.

6.Soon afterwards, police officers arrived at the scene. PW4, the arresting officer, said that he had seen you and PW1 squatting on the ground, struggling with each other.   When he went over, you both stood up and then you were separated by police officers. 

7.That, in a nutshell, is the prosecution case.

8.You elected to give evidence in your defence.  Your case of the events that happened that late evening, however, is entirely different. 

9.You say you did not rob PW1, nor were you ever with two other people.  You had in fact been assaulted by PW1 and another person called Mehtab whilst PW2 was at the scene along with two other men. It is your allegation that the motive for you being assaulted was as a result of a claim you made against your former employer (PW3) for unpaid wages.  Mehtab you say is your former employer’s brother.

10.The issue at trial is whether PW1 was robbed by you and two others.  It is for the prosecution to prove to me beyond all reasonable doubt that you did rob PW1. 

11.I have carefully taken into account the evidence given by the prosecution witnesses and you, the defendant.  I have given myself the requisite warning as to your clear record.

12.You, PW1, PW2 and PW3 are all of Southeast Asian background.  You are Pakistani and all speak the Punjabi language.

13.At first glance this case appears to be a very simple question of whether you did or did not rob PW1 on the street.  What transpires, however, from the background evidence in this case is slightly more complex. 

14.There is no dispute on the facts of this case that you made a claim against your former employer for HK$210,000 in March 2012 before the Labour Tribunal.  The matter was settled by your former employer paying $32,500 in cash to you directly on 26 July 2012 in Hong Kong. 

15.There is also no dispute that you entered Hong Kong illegally on or around February 2012.  Your purpose of entering Hong Kong illegally was to enable you to file your claim for unpaid wages against your employer.

16.It was your case that this assault upon you was as a result of you making the claim for unpaid wages against your former employer, PW3, who gave evidence and that PW3’s brother had assaulted you as it was an insult to PW3.

17.The defendant had mentioned his account in the record of interview shortly after his arrest.  On face value, the story recounted by the defendant may appear to be something that may have been make-believe. However, after hearing the evidence what appears clear to me is that the defendant’s account is not as inventive as appears. 

18.There is unchallenged evidence before this court that a complaint was made by the defendant to the police a few months after his arrival in Hong Kong (in May 2012- after your claim in the Labour Tribunal) before this incident about a criminal intimidation, either by your employer or persons connected with your employer. 

19.Another complaint was made even after the defendant’s arrest for the present offence during his remand in Lai Chi Kok.  The defendant made another complaint to the police that somebody he did not know had visited him in Lai Chi Kok threatening him respect of matters relating to his previous employment with PW3. 

20.Although there is no evidence at all from the prosecution that any matters in relation to this alleged robbery are related to the employment, I cannot be sure that it was not as I find some credibility in the defendant’s account as to what happened that late evening. 

21.The defendant’s evidence was that he was talking to his girlfriend on the phone for about an hour when he was suddenly assaulted. 

22.The prosecution’s evidence was that the defendant and two others robbed PW1.

23.The defendant’s telephone records support his account of his lengthy phone call.  I found it rather surprising on the evidence, which is again not challenged, that the defendant was speaking on the telephone for a lengthy time of an hour and 24 minutes and then abruptly within a short time of some 4 minutes of ending the telephone he would be committing a robbery with PW1 together with two other people.   I also found it inherently improbable that upon robbing this person PW1, that PW1 would after struggling to subdue him and permit the defendant to use his own telephone to call the police.  This is not the conduct I will expect of someone who had just been robbed.  Oh of someone who had just committed a robbery.

24.There was contradictory evidence in that the police officer who arrived at the scene, said the defendant was on the ground struggling with PW1 at the time and when he came he separated them.  This evidence is inconsistent with PW1’s evidence in that he and the defendant were not struggling with each other by the time the officers came.

25.It is also inconsistent with the defendant’s evidence that by the time the police came, he had already made three phone calls to the police on his mobile phone asking for assistance.  

26.These three phone calls to the police are, in my view, material in this case in finding some grain of truth in the defendant’s account. 

27.I accepted the defendant’s evidence that he made these three phone calls from his own phone as is seen in the caller records printed out from his phone at the trial.  The last phone call to the police lasted for 3 minutes and 9 seconds.  That is extremely a long time in the circumstances.  I find it inherently probably that the defendant was struggling with PW1 during the time he was making the phone call to the police.  I do not accept that when the police came therefore that he was still struggling with PW1.  I accept that he was desperate to call the police as he wanted assistance from the police.   His actions of calling the police were wholly irreconcilable with that of a robber.

28.There are many lurking doubts of this case.  I cannot be sure as to what had transpired on that early evening. 

29.The defendant’s case has given rise to doubts in the prosecution case.  In the circumstances defendant, you are acquitted and discharged of Charge 1, robbery.