HKSAR v. ISLAM SIRAZUL

DCCC 3/2023

[2024] HKDC 903

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3 OF 2023

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REASONS FOR VERDICT

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  The defendant faces a charge of "Attempted robbery" (Charge 1)  and a charge of "Resisting a police officer in the due execution of his duty" (Charge 2). He pleaded not guilty to both charges. The prosecution alleges that he tried to take away a cell phone from a street cleaner.

The Prosecution Case

2.  The prosecution called 3 witnesses:  Madam Ouyang (PW1), PC 20858 (PW2)  and PC 16524 (PW3).

3.  PW1 was a street cleaner.  Shortly after 10:00 p.m. on 5 September 2022, PW1 was on duty in uniform (which included a green top, a pair of grey trousers and a reflective vest)  working at Chun Yin Square Playground in Yuen Long ("the Playground").

4.  PW1 was standing near a park bench[1] and had just taken out her cell phone holding it in her hand.  Suddenly, someone (later confirmed to be the defendant)  ran towards her and tried to snatch her cell phone.  PW1 held onto her cell phone tightly so the defendant was unable to snatch it (even using both hands).  PW1 then ran towards an exit of the Playground[2].  The defendant chased after PW1 and used both hands to press her from behind trying to snatch her cell phone.  PW1 fell onto the ground but was still holding onto her cell phone tightly.  At that time, PW1 heard a young man yelling in Punti "You still snatching, still snatching!"

5.  After PW1 had fallen onto the ground, the defendant was on top of her trying to snatch her cell phone but failed.  Another young man came over and asked if she was OK.  The defendant fled when the 2 young fellas came.

6.  PW1 described the defendant as a male wearing a pink top and seemingly unmasked. She elaborated that she fell onto the ground outside the Playground, but none of the photos contained in Exhibit P4 can show where she fell.  PW1 also explained that the screen of her cell phone cracked after she fell because it had no phone case.  The price she paid for her cell phone was $2,300 odd.  It could no longer function after this incident.

7.  According to PW1, someone at the Playground called 999 for her.  Then 3 uniformed police officers arrived.  They and PW1 boarded a police car and drove around to look for the defendant.  They saw the defendant at Hi Lee Path.  PW1 pointed him out to the police officers.

8.  PW2 and PW3 were on patrol car duty in plainclothes.  About 10:35 p.m. that evening, they were sweeping the nearby area on foot to look for the defendant.  In a back alley at Hi Lee Path, they saw the defendant (in a pink top, dark blue trousers and slippers).  PW2 revealed his police identity by showing his warrant card and told the defendant that he was police in English and Punti.  PW2 then asked the defendant in simple English if he had been to Chun Yin Square.  He did not reply.  PW2 asked the same question in Punti, the defendant replied in English "Yes".  PW2 asked him what he did at Chun Yin Square, the defendant appeared to be nervous and wanted to leave.  He replied in Punti he did not know and shook his head.  Then he said something which PW2 did not understand.

9.  At that time, PC 24540 and a female in cleaner's uniform (i.e. PW1)  came to the back alley.  PW2 was informed that the victim had just identified the defendant as the culprit who tried to snatch her phone.  PW2 confirmed with PW1 that the defendant was the culprit.  PW2 declared arrest on the defendant for "Robbery" in Punti[3]. As PW2 was trying to hold onto the defendant, he resisted by moving his 4 limbs to free himself.  PW2 took out his handcuffs trying to control the defendant but he was still struggling and refusing to put his hands behind.  PW2 tried to use both hands to grab the defendant's arms but he kept shaking his arms.  PW2 and PW3 had to press the defendant on the ground and used their bodies to press against him.  The defendant tried to get up and put up a struggle.  PW2 warned him in both Punti and English "I'm warning you.  Don't Move." PW2 finally managed to cuff the defendant's hands at his back.

The Defence Case

10. The defendant elected to give evidence and called his flatmate (DW2 Mr. Hassan)  as defence witness. The purpose of calling DW2 was to prove the purchase of a Samsung brand cell phone on 15 April 2022.

11. The defendant is a Form 8 holder from Bangladesh. He is married with 4 children. His wife and children are in Bangladesh. He came to Hong Kong illegally via Shenzhen in 2013. He has not been in trouble with the Police until the present case.

12. The defendant's story is simple. He claimed that on 5 September 2022, he had 2 mobile phones (a small red one and a light blue one). He purchased the light blue one (a Samsung brand cell phone)  on 15 April 2022 at $3,998[4] and his friend paid for it[5]. The defendant said his Samsung phone was similar to PW1's cell phone[6], but his had 5 camera lenses. The small red phone was for making voice calls within Hong Kong and the Samsung phone was for overseas calls and watching videos.

13. In the evening on 5 September 2022, the defendant was at the Playground sitting on a park bench calling his wife and friends with his Samsung phone. After making those phone calls, he went to a nearby Nepalese shop to buy bottled propane gas for cooking but the shop was closed. The defendant suddenly realized that he had left his Samsung phone at the Playground, so he returned there to look for it.

14. The defendant went back to where he had sat but could not find his Samsung phone. He saw a lady (i.e. PW1)  sitting there, so he asked her about his phone in Bengali. PW1 waved her hands indicating "No". The defendant explained that he just wanted to borrow PW1's phone to call his Samsung phone; however, PW1 kept walking away so he followed her trying to explain himself in Bengali and with gestures. The defendant denied that he was trying to snatch PW1's phone from her.

15. The defendant claimed that he did not see PW1 falling down or how she damaged her clothes. After he left the Playground, he went home and then went to another shop to buy gas. Soon after that, the Police arrested him. He said he was cooperative when the Police intercepted him. When they asked for identity proof, he showed them his Form 8. The defendant denied having resisted any police officer.

Assessment and Analysis of Evidence

16. The burden of proof is on the prosecution to prove each element of each offence beyond reasonable doubt.

17. I have carefully considered the evidence of all witnesses (including the defendant's and DW2's)  and observed their demeanour in the witness box. As a juror, I find PW1 to PW3 credible, truthful and reliable. I believe their evidence without reservation.

18. I am aware of the so-called discrepancies between PW1's evidence in court and her witness statement as well as those between PW1 and PWs 2 and 3 raised by defence counsel Mr. Whitehouse. In my view, whether PW1 was sitting on a park bench or standing next to a park bench when the defendant approached her is irrelevant. Even the defendant has said in his own evidence that he tried to approach PW1. How PW1 fell onto the ground is again irrelevant. PW1 said the defendant was chasing after her (whereas the defendant admitted that he was following her). I have no doubt that PW1 would not have fallen if the defendant did not pursue her. During cross-examination, PW1 said clearly that after she fell down, the defendant was still leaning down on her trying to snatch her phone. Hence, it makes no difference if PW1 had tripped or was pushed by the defendant[7].

19. Regarding what happened at the back alley at Hi Lee Path, Mr. Whitehouse submitted that PW1 must have still been there after she had identified the defendant to the PW2. PW1's evidence was that after she pointed out the defendant, the police officers asked him to board the police car. Both PWs 2 and 3 also said in their evidence that they did not pay attention if PW1 was still present after she had made the identification because they were busy dealing with the defendant. There is nothing contradictory between the evidence of PW1 and the 2 police officers. As a juror, I believe PW2 and PW3 that the defendant had resisted PW2's arrest in the ways described by them.

20. As a juror, I find the defendant's evidence ludicrous and defying common sense. Irrespective of any cultural background or language barrier, no sensible person would try to borrow someone's phone at a playground in the evening in the manners described by the defendant. Even if it was his intention to borrow PW1's phone, the defendant did not need to follow her when she was running away from him. The CCTV footage[8] (however short it is)  clearly showed that PW1 was running away and the defendant was chasing after her. I could also see that the defendant had caught up with PW1 and there was some scuffling between them. There is no doubt in my mind as to what happened. You do not and cannot explain yourself to someone by engaging in a scuffle with that person. There was no misunderstanding whatsoever as suggested by Mr. Whitehouse. Based on PW1's evidence and the CCTV footage, I am sure that the defendant was trying to snatch PW1's cell phone and that he has used force in the process.

21. For the avoidance of doubt, I also reject the defendant's claim that he had wanted to see if PW1 was holding his own Samsung phone. He simply had no basis for having such suspicion. Even if he did, he should have sought help from the Police and let the Police sort it out for him. As a juror, I do not find this explanation remotely plausible. The defendant was making up his story as he went along in his video recorded interview (VRI). I do not believe a word he said in his evidence or VRI.

22. Based on the reasons stated above, I am satisfied that the prosecution has proved beyond reasonable doubt all elements of each offence. I find the defendant guilty of Charges 1 and 2.