HKSAR v. SAJJAD SHAHROZ

DCCC155/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 155 OF 2012

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Reasons for Verdict

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1. D1 is facing one charge of theft, (Charge 1), and one charge of attempted robbery, (Charge 2). He has pleaded not guilty to both charges.

The prosecution case

Charge 1

2. On 16 November 2011 at about 1.30 pm Miss Wong Yin-kwan, PW1, was walking outside Nam Cheong Park, Sham Shui Po, Kowloon.  She saw three South-Asian males, one of them snatched away PW1’s mobile phone from her hands.  They then ran away together.  PW1 gave chase but failed to catch them. 

3. On 30 November 2011 PW1 at an identification parade identified D1 as the person who snatched away her phone.

4. PW1 testifies in court that she is sure of the identification of D1 because during the chase of the three South-Asian males, D1 turned his head and she was able to see his face for about 2 seconds. 

Charge 2

5. On 26 November 2011 at about 8 pm Miss Tsang Hor-ying, Shirley, PW2, was walking past two South-Asian males at the pavement near Nam Cheong Park.  She was listening to music from her mobile phone and playing video games on the phone which she held in both hands.  One of the two males, D1, approached PW2 and tried to snatch away her phone.  PW2 did not let go and held it firmly close to her chest.  They were vying with each other for the mobile phone.  When D1 could not take the phone, with one hand still holding on the phone, he used another hand to grab hold of PW2’s neck.  At this juncture, another male suddenly shouted giving a hand signal to D1 to run.  Without taking PW2’s phone, both of them immediately ran away.

6. The incident was being witnessed by two police officers, PC4724 and PC3137, who were laying ambush in the vicinity.  They placed D1 and another male under their observation.  Both officers saw D1 pulling PW2’s phone and grabbing her neck.  They gave chase and eventually subdued D1 and the other male in the vicinity. 

7. Medical examination revealed mild redness on the dorsal area of PW2’s left arm.  However, no mark was found on her neck.

8. In a subsequent video recorded interview, D1 claimed that he used one hand to snatch the phone from PW2 but he failed. However, he denied grabbing hold of her neck.  He said he was responsible for the snatching while the other male acted as a lookout.  He also denied the offence in Charge 1.  He claimed that he was sick at home for the whole day on 16 November 2011.

9. The voluntariness of the video interview record is not disputed. 

The defence case

10. On Charge 1, the only issue is whether D1 was correctly identified as the real culprit.

11. D1 gives evidence that at the material time on 16 November 2011 he was sick at home.  D1’s mother also gives evidence as alibi witness on Charge 1. 

12. On Charge 2, D1 admitted during arraignment that he would plead guilty to attempted theft, the proposed plea was not accepted by the prosecution. 

13. D1’s evidence is that he did attempt to snatch away PW2’s phone, however, he failed to do so.  He did not grab the neck of PW2.  He did not even grab or pull her hand. 

Evaluation of evidence

Charge 1

14. The whole case turns on the correctness of identification of PW1.  According to her, she took a glance of the male when he snatched her phone.  When she was running at a distance of 3 to 4 metres behind the three males, she could see the face of the male who snatched her phone for about 2 seconds when he turned his head back.  I find that this is a fleeting glance situation and give myself a Turnbull warning.

15. D1 has adduced alibi evidence.  He says he had an asthma attack on 16 November 2011 on his way to school.  He therefore returned home and slept after taking some medicine for asthma.  However, he could not get an appointment to see his doctor until 18 November.  He remained at home until 22 November when he returned to school.

16. His mother gives evidence to the same effect. However, her evidence is contradicted by the sick leave letter written by her to D1’s school.  The letter only states D1 was not able to attend school due to illness on 17, 18 and 21 November.  D1’s mother explains in court that she forgot to mention about the 16th day in her letter when she wrote it on 21 November.  I find the explanation unconvincing.  The purpose of writing the letter was to explain D1’s absence from school and the letter was written only on the 21st day of November.  It is unbelievable that she could forget or make a mistake when the letter was written. 

17. On the other hand, if D1 was indeed in such a bad condition that he could not go to school until 22 November, it is hardly believable that he did not go to see a doctor until 18 November.  If he could not get appointment from one doctor, he could go to see another doctor.

18. I do not accept the alibi evidence of D1 and his mother.

19. That said, D1 has no burden to prove his innocence. The burden is on the prosecution to prove beyond reasonable doubt.  It was a fleeting glance situation.  There is no suggestion that PW1 had seen D1 before the incident of snatching.  PW1 could only see the culprit at a split second when he snatched away her phone and for 2 seconds when he turned his head during the chase. 

20. Although PW1 was very firm that she recognized D1 correctly at the ID parade by his face, she was not able to describe any special features of the assailant.  Moreover, it is also agreed by the prosecution that PW1 made a wrong identification of another person at the ID parade.  PW1 described the culprit as a man about 20-odd years old.  However, D1 was only 15 years old at the time of the offence, though he looks a little have mature than his actual age.

21. In my judgment, PW1 should be in a rather difficult position to observe the culprit’s face.  The risk of wrong identification is enhanced by the fact that the culprit was not a Chinese, the face of a South-Asian male should be more difficult for a Chinese to remember. I have doubts whether the identification of D1 is correct and the doubts are resolved to the benefit of D1.  D1 is acquitted of Charge 1.

Charge 2

22. There is no dispute that D1 did attempt to snatch PW2’s phone.  The only dispute is whether D1 used force, i.e. to pull the hands and grab the neck of PW2 in order to snatch her phone.  D1 says he did not even grab her hands, the only contact with her was an accidental brush of her arm. 

23. Miss Wong, counsel for D1, submits that there were discrepancies between the evidence of PW2 and the two police officers, PW4 and PW5.  Their description of the manner in which PW2 held on to her phone and the struggling are different.  These discrepancies include the following:

(1) PW2 says D1 grabbed her neck for about 5 minutes; PW4 says the struggling lasted for about 30 to 40 seconds; and PW5 says it was about 20 seconds;

(2) PW2 says during the struggling her top garment was pulled; PW4 says her top was not touched;

(3) PW2 says both of her hands covered the whole of the phone so that D1 was only able to come into contact with her hands and not the phone; PW4 and 5 say D1 was able to grab hold of the phone which was exposed in the middle between the hands of her;

(4) PW2 says D1 used his right hand to grab her neck; PW4 and 5 say it was D1’s left hand.

24. I accept the submission that there were discrepancies in the description of the incident.  However, I do not accept that the witnesses are incredible or dishonest.  When witnesses are describing a fluid situation, different description of the fast moving actions and different estimates of time are only to be reasonably expected of the witnesses. In particular, when PW2 was no doubt in panic, she could easily be mistaken in her observation and memory.  It can be demonstrated by her estimate that the grabbing of her neck lasted for 5 minutes which must be realistically an inaccurate estimate of time.

25. All these inconsistencies are, in my judgment, immaterial.  What is important and it is noted that all the three witnesses were consistent in saying that D1 first grabbed hold of PW2’s hand and then her neck.  All the three witnesses remain firm and unshaken in cross-examination in this regard.

26. As to which hand D1 used to grab PW2’s neck, again I find it immaterial.  Medical evidence proves that PW2’s left forearm was injured.  This is consistent with the observation of PW4 and PW5.  PW2 may have made a mistake in this regard. 

27. As regards the evidence of D1 on Charge 2, I bear in mind that he has a clear record.  He is only 16.  However, I find that his evidence is against logic and common sense.  If his evidence were true and that he only accidentally brushed the forearm of PW2, she would not have sustained the injury on her forearm as indicated in the medical report.

28. If there was no pulling of each other and the incident only involved an accidental brush and run, the whole incident should have lasted only a split second.  It could not have allowed time for another male to speak to D1 indicating him to run, such are not being disputed.  The evidence of D1 is incredible.

29. Having considered all the evidence, I find D1 an incredible witness and I reject his evidence relating to Charge 2.

30. The evidence of PW2, 4 and 5, though with some discrepancies, are reasonable and logical.  Indeed I cannot see any reasons why they should concoct with each other and tell lies.  I find that they are honest and reliable witnesses in the description that D1 used force to grab PW2’s hand and neck in his attempt to take the phone from her.  I reject D1’s explanation that he did not use or intend to use force on PW2.

31. I am satisfied beyond reasonable doubt that the prosecution has proved all the elements of attempted robbery.  I find D1 guilty of Charge 2 accordingly.