HKSAR v. BUTT MUHAMMAD UMAR UZAIR

DCCC 70/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 70 OF 2016

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Reasons for Verdict

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1.  The defendant faces one charge of robbery and one charge of wounding, contrary to section 19 of the Offences against the Person Ordinance.

2.  The allegation is that PW1 owed the defendant money; that they arranged to meet in Sham Shui Po; at the meeting, the defendant, with a group of other men, assaulted and robbed PW1 of his shoulder bag.

3.  The defendant was arrested at the scene.  He agrees he met PW1 at Sham Shui Po to sort out the question of PW1’s debt to him.  He says PW1 was assaulted by other people, and he never took anything from him.

4.  The issue in the trial therefore presents itself as a simply factual issue of credibility and reliability.  PW1 is the only witness who can incriminate the defendant.

5.  The defendant in the trial gave evidence himself and called witnesses to confirm he was not involved.  The evidence showed that both PW1 and the defendant are Pakistanis.  PW1 is an asylum seeker described as a Form 9 holder, not entitled to live and work in Hong Kong.  He has been deported from Hong Kong.  He has a history of criminal offences in Hong Kong.  The defendant is a Hong Kong permanent resident.  He has a clear record.

6.  The gist of PW1’s evidence was that he said the defendant was involved in people smuggling; that the defendant had arranged for two Pakistanis from PW1’s area or region to enter Hong Kong, and some fees involved in this transaction had not been paid by them.  As PW1 had recommended the defendant to these men, the defendant is said to have held PW1 responsible for the fees.  The total amounted to some $22,000.

7.  The defendant called PW1 to a meeting in Sham Shui Po in the vicinity of Kweilin Street.  It was evening time, around 10 o’clock.  The defendant is said to have asked PW1 for the money.  PW1 is said to have said why should he pay.  The defendant then snatched PW1’s shoulder bag and handed it to a man standing by him.  The defendant then assaulted PW1 by hitting his head.  There were 10 to 11 people with the defendant.  They also started to assault PW1.  PW1 ran away across the street towards the open market.  The group, including the defendant, chased him and continued to beat him.  PW1 then ran towards Tai Nan Street.  PW1 fell down.  The defendant is said to have found a table.  He beat PW1 with the table after PW1 fell to the ground, and PW1 was struck on the head.

8.  Shortly after, the police arrived.  It appears that the defendant had made a report to the police.  He told them that PW1 had tried to snatch his phone.

9.  PW1 was bleeding, and was taken away by ambulance, where he received treatment at a hospital.  He had three stitches to the head.

10.  PW1’s bag was later recovered.  Some cash inside had been taken.  Its location was established to be about 10 minutes’ walk from the scene of the assault.

11.  In further evidence, the arresting officer of the defendant drew a sketch.  The person who found PW1’s bag was also called in evidence.

12.  The defendant gave evidence.  He is of clear record, a Hong Kong permanent resident, and of Pakistani nationality.  He agreed that PW1 owed him money.  He said it was $50,000 for stock.  He had sought out PW1 and agreed to meet him at the location in Kweilin Street.  He did ask him when he would repay the money.  PW1 did say something like “What kind of money?”

13.  The defendant said that PW1 then started to argue with another group of men standing nearby.  They then started fighting. They were Pakistani, but the defendant did not know them.  There were also Chinese and Vietnamese men involved.  They beat PW1.  PW1 ran to the opposite side of the road towards a fruit market.  A man hit PW1 on the head with a table.

14.  The defendant did call for the police.  PW1 snatched the phone from him, threw it to the floor; it broke; and the defendant said he had never taken PW1’s bag.

15.  The defendant also called a witness.  This is DW2, a man called Shehar Yarlone.  He was a Pakistani who, on his evidence, had arrived at the scene after the assault.  This man was arrested and detained for being involved in the assault on PW1.  PW1 had pointed him out as being involved and using a belt to hit him.  In fact, this witness said he was not even present.  Also, it is the case that this witness had been detained by the police for 38 hours when PW1 had not gone forward with his earlier allegation against him.  This man was of clear record.

16.  The 3rd defence witness had been eating in a Nepali restaurant nearby.  He had seen PW1 being assaulted.  He knew the defendant.  He said the defendant was not involved in the beating.  PW1 had said to him after the assault that he, PW2, had better leave or he, PW1, would point him out as being involved.

17.  The next witness called by the defendant was another Pakistani gentleman of clear record.  He knew the defendant.  He was also present.  He said he saw the whole incident.  He saw the defendant and PW1 together; he saw another group of men come over and assault PW1; he thought PW1 was also hit with a stool or table.  He saw PW1 snatch the defendant’s phone.

18.  PW1 also pointed this witness out to police.  He persuaded PW1 to say he was not involved, and PW1 agreed.  PW1 had said, “Whoever is standing here, leave, or I will take all your names.”

19.  As far as the law is concerned, the dispute here is not about whether the offence would be made out if PW1’s evidence is accepted.  It is accepted that if PW1 is truthful, reliable and honest, then the offences of robbery and wounding would be evidenced by his testimony.  It is simply said that PW1’s evidence runs against the weight of all the evidence, that PW1 is inherently suspect as a witness.  Because of this, his evidence alone is not capable of satisfying the burden of standard of proof in a criminal case, the burden being on the prosecution at all times, and the standard being proved beyond reasonable doubt.

20.  The prosecution submitted that the defendant’s evidence contained elements that were not believable.  The defendant said he had advanced money to PW1, yet PW1 had no source of income with which to repay. The defendant’s account presupposes another group of men who knew PW1 would be present at the exact same time and place as himself, and also that these men would be ready to assault PW1.  It is said the defendant’s evidence should be rejected, and his witnesses’ also, as they agree and promote a flawed and inherently improbable account, so they should also be rejected.

21.  The defence submit that PW1 was quite prepared to implicate people who had not been involved, and because the defendant agreed he had arranged to meet him, PW1, to discuss the debt, PW1 must have assumed that the defendant arranged the assault on him, and therefore implicated him in the assault in the same way as he had wrongly implicated the first witness, Mr Sherry Leone; and also, in any event, such a possibility could not be excluded.  It was also said PW1 was an unreliable witness with a history of providing false information to police.  He had got a conviction for this.  He admitted doing it in the trial when implicating the first defence witness.  It was just not possible for a court to rely upon such a flawed witness to a criminal standard; and also, there were witnesses of clear record giving evidence in completely the opposite direction.

22.  As stated earlier, the issue is one of credibility. In fact, the actual difference in evidence relates to quite a small part of the general testimony given.  Both PW1 and the defendant agree they met at that location on that evening.  Both agree the issue was over a debt that was owed by PW1 to the defendant.  They have a disagreement over the size of the debt and the reason for it, but their reason for being there is not disputed.

23.  Both men agree that PW1 was assaulted by a group of men.  He was struck with fists and he was hit over the head with a table. PW1 does not dispute that he pointed out Mr Sherry Leone as being involved in assaulting him with a belt.  It is not disputed that this gentleman had not done that.  It is not disputed that he was not present at the time.  It is not disputed that other men were threatened to be implicated by PW1, including the third defence witness; and it is not disputed that this man was not involved.

24.  PW1 does not dispute he is convicted of giving false information to police, although he says he is wrongly convicted.

25.  In assessing a witness, a court must of course must be intimately concerned with his reliability and credibility.  Is he a person with a propensity to lie?  Has he given inconsistent statements?  Has he implicated people wrongly?  Are there other witnesses who, on their face, are reliable, who have given a contrary account?

26.  I note the prosecution’s misgivings about the defendant’s evidence.  However, even if the defendant’s evidence is found to be unreliable in certain areas, it does not make PW1’s evidence necessarily reliable.

27.  The difficulties I perceive, relying on the first prosecution witness’ evidence, are as follows.

The first prosecution witness’ evidence

28.  Firstly, he has implicated a person in a specific actual assault - that is, the use of the belt to hit him - when this gentleman was not even present.  It led to him being detained as a suspect for 48 hours as a result of this allegation.  As the person was not present at the time of the assault, the PW1’s allegation as made at the time must have been untrue and must have been known by him to be untrue.  This illustrates a carelessness of the concept of truth that is truly disturbing.

29.  Although PW1 retracted the allegation, this was made as a result of out-of-court submissions made to him in a temple.  Further, PW1 can be heard, and is witnessed by others, to make similar threats to others present, warning them to leave or they would be implicated.  But such allegation must, of course, necessarily be false, unless he could personally identify them.

30.  Finally, there are at least two witnesses present of clear record who give an account contrary to PW1.  One of those is the defendant, and one of them is another gentleman called by the defendant, and they were extensively questioned, and at no time their testimony, to use the phrase, could be considered to be shaken.

31.  As far as the first prosecution witness is concerned, there is reason to be clearly suspect of the things he says; and secondly, the weight of evidence of witnesses whose credibility has not been, as it were, shaken, is again in favour of PW1’s testimony not being accepted generally.

32.  For these reasons, I find that I cannot place reliance upon the first prosecution witness’ evidence in this matter to a criminal standard of proof.

33.  As his evidence is an essential feature of the proof against the defendant, the prosecution is unable to discharge the burden and standard of proof in this case, and the charges must be dismissed.