HKSAR v. QADEER AHMAD AND ANOTHER

CACC 317/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 317 OF 2013

(ON APPEAL FROM HCCC NO. 435 OF 2012)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the Court):

Introduction

1.  Both applicants were tried in the High Court before Deputy Judge Geiser between 15 and 28 August 2013 on an indictment containing one count only, namely robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.  On 23 August 2013 they were convicted by the verdict of the jury and on the 28^th day of the same month they were both sentenced to 8 years’ imprisonment.

2.  Both applicants applied for leave to appeal against their conviction. The 1^st applicant initially also applied for leave to appeal against sentence but on the 29^th May 2014 he abandoned that application.

3.  At the conclusion of the hearing we dismissed both applicants’ applications for leave to appeal against conviction and said we would give our reasons for doing so at a later date.  This we now do.

The Trial

4.  The prosecution case was quite a straightforward one.  It alleged that around 9.45 a.m. on 13 July 2012 the applicants attacked the victim after he left his flat in Granville Road, Tsimshatsui carrying a black briefcase containing diamonds.  The victim was Mr SHAH Iren Kantilal who is a diamond trader.  He sources diamonds in India and sells them to customers in Hong Kong who are mainly jewellery manufacturers.  The diamonds in Mr Shah’s briefcase were worth between six and seven million dollars and Mr Shah was carrying them as he planned to visit five jewellery manufacturers that day.

5.  The prosecution alleged that in a joint enterprise attack upon Mr Shah, the applicants hit him with a wooden board that was contained inside an environmentally friendly shopping bag.

6.  It was Mr Shah’s evidence that after leaving his flat he went to the Indian Temple and then walked through a small lane to Hau Fook Street and continued down the lane towards Cameron Road.  He saw two males, the applicants, near the 7-Eleven shop at the junction of Cameron Road.  Suddenly, these men appeared on either side of him and one of them hit him on the right side of his head near his right eye with a hard wooden object.  He said he was hit twice. Then, the other person hit him on the left side of his head near his left eye. He was also hit on his back and the man on his right-hand side tried to snatch his briefcase from him which was slung over his shoulder.  He lost control of the bag but whilst he was still struggling with the men the police arrived. Mr Shah was subsequently taken to the hospital where lacerations to his left and right eyebrows were sutured.  He said he did not know either of the applicants.

7.  Unfortunately for the applicants, but fortunately for Mr Shah, a police vehicle was in the vicinity and police officers in the vehicle had observed what was taking place.  They saw the assault upon Mr Shah and saw his briefcase being taken from him by the 1^st applicant.  The police arrested the two applicants, retrieved the briefcase and returned it to Mr Shah.

8.  Three police officers were the only other witnesses in the case.  One police officer, PW2, said he saw the 2^nd applicant hitting Mr Shah over the head with what was described as an environmentally friendly shopping bag that contained something inside it.  The 1^st applicant, he said, was trying to snatch away Mr Shah’s briefcase and this he finally succeeded in doing.  He said he and his colleague intercepted the 1^st applicant who then dropped the briefcase.  The 2^nd applicant ran away carrying with him the bag containing the wooden object that he had used in his assault upon Mr Shah.  This police officer said that whilst, from a distance, the scene presented the appearance of fight between three people, it became clear that this was not so.  He disagreed with the suggestion that it was the 1^st applicant who was hitting Mr Shah with the bag containing the wooden board and disagreed with the suggestion that the 1^st applicant never snatched Mr Shah’s bag.

9.  PW3 was another police officer travelling in the same vehicle as PW2. He gave similar evidence to PW2 and testified as to how he pursued the 2^nd applicant who was ultimately arrested by officers in another police vehicle which came to their assistance.  In the course of pursuing the 2^nd applicant, PW2 said he saw him dropping the bag containing the wooden object.

10.  At the scene of this robbery there was a CCTV that was installed at the G/F of 27 Cameron Road and which captured some of the activities of the applicants.  Footage of the robbery was recorded on a DVD which became Exhibit P2 in the trial.  Frames from this footage were printed out as photographs and put together in an album.

11.  Neither applicant chose to give evidence nor to call any witness.  The defence case as put to the prosecution witnesses was that neither applicant snatched the briefcase from Mr Shah and that it was the 1^st applicant who had assaulted him.  It was suggested that the incident was purely an assault, which occurred because Mr Shah had made a derogatory comment about Pakistani Muslims.

12.  There were also Admitted Facts signed on behalf of both applicants. Paragraph 3 of this document admits that DNA obtained from bloodstains on the 2^nd applicant’s shorts and shirt could all have originated from Mr Shah.  This evidence was consistent with the evidence of the police officers that it was the 2^nd applicant who assaulted Mr Shah.

The Grounds of Appeal

13.  Both applicants appeared in person and both have provided to the court written submissions in respect of their appeals.  The grounds of appeal of the 2^nd applicant appear to duplicate those advanced by the 1^st applicant. In summary these grounds of appeal are that:

(i)     the judge erred in totally ignoring the CCTV recording, Exhibit P2, in his summing-up to the jury and that this recording, in fact, contradicted the evidence of the police witnesses.  It was asserted by the applicants that Exhibit P2 showed that prosecution witnesses fabricated their evidence and lied in court; and

(ii)    there was no evidence to prove that either of the applicants had knowledge of Mr Shah, the route he would take, the purpose for his journey or that his briefcase contained diamonds.  It was also submitted that the prosecution had not proved that the stones were, in fact, real diamonds.

14.  At the hearing of their applications both applicants urged upon us the CCTV recording and reiterated its importance to their defence and this appeal.

Discussion

15.  We have reviewed for ourselves Exhibit P2 and the album of still images printed from it.  Though it does not show how the incident started, it does clearly show someone trying to snatch Mr Shah’s briefcase.  We do not agree that it does not support the prosecution case or that it actually contradicts it or in any way undermines the evidence of the prosecution witnesses.  Rather, it is entirely consistent with the prosecution case.

16.  It is true that the judge made only brief mention of the CCTV recording but that is hardly surprising.  It had been played back in court on a number of occasions and as we have said it did not capture the whole of the incident and the images it did record are not particularly clear.  But, the judge did remind the jury of the video recording and invited them to look at it again if they so wished.  He certainly did not ignore the recording, or discourage the jury from having recourse to it or make any comment devaluing its utility other than that the images on it “are not particularly clear” [1]

17.  In respect of the applicants’ second complaint the jury were reminded of the evidence of Mr Shah that he had told nobody of his plans that morning or the route he would take to Cameron Road or that he was going to be carrying diamonds.  The judge reminded the jury also of the fact that neither applicant declared robbery and that the incident occurred in full view of other people in Cameron Road.

18.  Whether the applicants were merely assaulting Mr Shah or acting in concert to rob him was a decision for the jury.  In the absence of direct evidence, such as a declaration of robbery, the issue fell to be proven circumstantially with the jury having to decide whether robbery was the only reasonable inference that could be drawn from the evidence.

19.  However, the prosecution evidence, once accepted, was overwhelming and the verdict of the jury inevitable.  Given that the suggestions put to the prosecution witnesses were all rejected by them and given that there was no evidence from either applicant to contradict the prosecution witnesses, the inference that the applicants committed the assault pursuant to a joint enterprise robbery of Mr Shah was the only reasonable inference; indeed it was an overwhelming inference on the evidence.

20.  As to the fact that the briefcase contained diamonds, this would have been proven by the evidence of Mr Shah.  It was entirely a jury matter as to whether his claim was believed and we can see no reason for the jury not to believe it.

21.  There is no merit in any of the complaints of either of the applicants.

Conclusion

22.  For the reasons we have given, we dismissed both applicants’ application for leave to appeal against conviction.

[1] Page 20 L of the Appeal Bundle.