HKSAR v. MUHAMMAD AKRAM

DCCC423/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 423 OF 2012

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Reasons for Verdict

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1.  The defendant faces one charge of robbery. He pleads not guilty to the charge.

The Prosecution Case

2.  The prosecution alleges that shortly after midnight, on 7 March 2012, in the male public toilet situated at 1st Floor, 12B Hok Yuen Street, Hung Hom, Kowloon, the defendant approached the victim Ng Po-shing, PW3.  Using a glass bottle (Exhibit 7), to threaten the victim, the defendant robbed the victim of cash totalling HK$250, 100 Thai Baht and one silver-coloured Nokia mobile phone (Exhibit 9).

3.  After the robbery, when the defendant was leaving the toilet, he was intercepted by two police officers (PW4 and PW5). The victim reported the robbery to them.  The defendant was searched.  The victim’s mobile phone, a HK$100 bank note and HK$530 in a wallet were found on the defendant.  The Thai banknote was not found.  A glass bottle was found from a rubbish bin inside the toilet. 

4.  The defendant’s right middle and ring fingers’ impressions were lifted from the wooden partition between cubicles 8 and 9 at the scene.  The impressions were found on the centre of the partition inside cubicle 8, near to the top, and pointing downwards. 

5.  Five prosecution witnesses were called. 

The Robbery

6.  The victim, PW3, is a 31-year-old sales person. He says he lives in Kwun Tong.  At the material time he had finished a night meal with friends at Ma Tau Wai Road.  On his way to take a mini-bus to go home, he went to the toilet in question for a bowel movement.  When he finished in cubicle 8 on his way to wash his hands, the defendant approached him, holding a glass bottle in his right hand.  The defendant said to him “Give me 100” in English.  The victim said “Hold on.  What you want?” 

7.  The defendant waved the glass bottle and hit the victim’s left middle finger.  The defendant said “Give me money.”  The victim took out his wallet from a bag he was carrying.  He took out $100 and gave it to the defendant.  The defendant took it and then said “Give me all.”  The victim then took out all the money from his wallet, namely one HK$100 banknote, one $50 banknote, one 100 Thai banknote and give them to the defendant.  The defendant then pointed inside the toilet and indicated that the victim should go inside.  The victim then went back to cubicle 8.

8.  Inside the cubicle the victim locked the door and took out his Nokia mobile phone intending to call the police.  Before he could do so the defendant climbed up the wooden partition between cubicles 8 and 9.  He used his right hand to bang on the partition on the side inside cubicle 8.  The defendant said “Give me your phone.”  The victim handed over the phone to the defendant. 

9.  After about 20 seconds, when the victim heard no sound from outside, he came out from the cubicle.  When he was walking out he saw the defendant at the doorway of the toilet.  At the same time there were two uniformed police officers.  He immediately shouted out “Robbery” and told the police officers what had happened.  The victim saw the defendant was searched and his mobile phone was seized from the defendant. 

10.  The victim describes the bottle as a frosted glass bottle with a red label of a brand of “Ice”.  He could identify it at the scene.  In court, when he was first asked by Mr Ng, counsel for the prosecution, to identify Exhibit P7, the victim could not recognise it.  He could, however, identify it in re-examination when Mr Ng asked him to rotate the bottle until he could see the red label. 

11.  The victim denies defence allegations that he is a homosexual and that on the night in question he held the penis of the defendant when the defendant was urinating at the urinal. 

The Arrest

12.  PW4 says, at 28 minutes past midnight on 7 March 2012, he patrolled to the toilet with PW5.  Inside the toilet the defendant was walking towards the exit near a rubbish bin.  The defendant turned round and threw a glass bottle held in his right hand into the rubbish bin.  Meanwhile the victim came out of a cubicle and shouted “Robbery”.  The defendant was therefore stopped and searched.

13.  PW4 found the Nokia phone of the victim from the right-front trousers pocket of the defendant.  The victim identified that the phone was his.  From the defendant’s left-front trousers pocket PW4 found two more mobile phones which the defendant said were his.  When further searched, PW4 found a HK$100 banknote from the defendant’s right-rear trousers pocket. PW4 asked “Your money?”  The defendant did not say anything. 

14.  From the left-rear trousers pocket of the defendant was also found a wallet containing altogether $530, two telephone SIM cards and two keys.  When asked whether it was his money, the defendant did not say anything.  When PW4 was trying to handcuff the defendant, the defendant put up a slight struggle by moving his hands about to avoid the handcuff.  He agrees that he made no record of the slight resistance in his statement.

15.  PW4 did not take out the glass bottle from the rubbish bin.  He did not search the bin.  He just looked into it from the top to the bottom and found there was nothing inside the bin.  PW4 denies the defence allegation that the defendant was kicked by police officers.

16.  PW5 gave a similar description of the events. He noticed that the victim’s left middle finger was indeed red and swollen.  He conducted a sweep for evidence in the area of the wash basin but could not find the Thai money.  He only viewed the rubbish bin from the top to bottom, but he did not search it.  He denies kicking the defendant or pressing him down on top of him.

Fingerprint Evidence

17.  PW1, Detective Sergeant 23015, is a scene of crime officer.  He lifted finger impressions from the left side partition of cubicle 8.  He also examined the glass bottle.  However, he did not find any fingerprints or trace of fingerprints on it. 

18.  PW2, Detective Station Sergeant 22504, is a fingerprint expert.  He found that the fingerprint impressions lifted from the cubicle’s partition inside cubicle 8 were identical with the impressions of the defendant’s right middle and ring fingers.  The expert was asked by the prosecution to examine the glass bottle in court.  His findings will not be repeated here as the prosecution subsequently decides not to adduce evidence to prove the chain of evidence, hence the bottle might have been tampered after PW1’s examination at the scene.  PW2’s findings on his examination in court are therefore irrelevant.  When asked whether it is possible that no fingerprint can be found on the glass bottle which has been touched by human beings, the expert answers in the affirmative and gives examples to explain the possibilities. 

Video interview record (“VIR”)-An Exculpatory Statement

19.  After arrest a video interview record (“VIR”) was conducted with the defendant voluntarily in the presence of an English and a Pakistani interpreter at 09:47 pm on 7 March 2012.  It is an admitted fact (see Exhibit P1) that the VIR is produced to show the response of the defendant.  It was primarily an exculpatory statement.  However, Mr Ng says the prosecution will rely on it as a mixed statement, which is also relied upon by the defence on the same basis.  The whole statement, therefore, becomes evidence and the court must consider as to the truth of the exculpatory account provided by the defendant. 

20.  There has been some delay in the trial as a result of the challenge of accuracy of the translation by the defence.  The issue was resolved eventually by the prosecution agreeing to the translation provided by the defence and admitted fact was made on such basis (See Exhibit P15.)  It transpires that the challenged contents of the translation in my view do not have any material significance in the issues of the case.  The agreed amendments of the translation do not make material difference from the original version. 

The Defence Case

21.  In the VIR the defendant denied committing the robbery.  He denied ever holding the glass bottle.  He denied that the Nokia mobile phone was found on him.  He said the victim held his (the defendant’s) penis when he was urinating.  The defendant further said he was kicked by police officer when he was handcuffed. 

22.  When the defendant testifies in court he adopts the VIR as his evidence.  He says the public toilet in question was about 5 minutes’ walk from his home, and he had used it every day in the past. When urinating at the urinal he was approached from behind, on his left-hand side, by the victim, who grabbed the defendant’s penis and smiled to him at the same time.  The assault took place when the defendant was standing on the grille for standing, while the victim was standing on the ground.  They were very close to each other at a distance of only about 10 inches apart.

23.  He says he had not done anything to invite the victim’s indecent attack.  He turned and kicked the victim.  After that he gave a hand signal, telling the victim to go down the corridor between the cubicles.  The victim did accordingly.  Then the defendant washed his hands and face in the washbasin for about five to six minutes. 

24.  When he was about to leave two police officers appeared and stopped him.  He spoke loudly to them and asked why he was stopped.  Suddenly the victim came out from a cubicle and talked to the police officers in Chinese, which the defendant could not understand.  Later, when the officers demanded for a search of him, the defendant took out all his belongings, which included two mobile phones and the money seized by the police officers. However, the police officer threw away his cigarettes and a lighter. 

25.  So far as the money are concerned, the wallet containing the money was placed in his right-rear pocket, whereas the HK$100 banknote was placed separately in his left-rear pocket.  He told the police officers all the money was his. 

26.  He explains in details why a HK$100 banknote was separately placed in his trousers pocket.  He says on the afternoon of the day in question he gambled in Kowloon Park.  He took out $400 for gambling. Eventually he lost $300.  He just pocketed the remaining $100 in his trousers pocket without putting it back in his wallet.

27.  As to the Nokia mobile phone, it was not found on the defendant.  It was taken out by the police officer, PW5, who told the defendant that they found the mobile phone on him.  He also took out a glass bottle from the rubbish bin and placed it on the washbasin.  He said to the defendant “The bottle was used by you.” 

28.  The defendant further tells that he fell onto the ground when he was kicked by the police officers.  When he landed on the ground he sustained fracture on his right thumb.  For this injury he was later sent to hospital for treatment.  He made a complaint to the Complaint Against Police Office and the Kowloon City Magistrate.

29.  As regards his fingerprint impressions on the cubicle’s partition, the defendant tells the court that on the afternoon of the day in question, he had a bowel movement at cubicle 9 of the same public toilet.  It was a squat toilet.  When he finished and stood up he felt dizzy.  To support himself he raised his right hand to hold the top of the partition between cubicles 8 and 9.  In doing so his right-hand fingers went over to the other side of the wooden partition in cubicle 8. 

30.  In a nutshell, it is the defendant’s case that the victim’s complaint was a fabrication.  It is suggested that in fear of the defendant’s complaining to the police officers about the victim’s indecent assault, the victim made a false report as a pre-emption.  There is, therefore, a possible motive for the victim to lie.

The elements of the Offence

31.  Section 10(1) of the Theft Ordinance provides: “A person commits robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”

The Issue

32.  The prosecution and the defence present two completely different versions.  The case turns on credibility and reliability of witnesses, in particular the victim. 

33.  I bear in mind that the prosecution has to prove that the defendant is guilty beyond reasonable doubt.  The defendant has no burden to prove his innocence.  If his account of the case may be true or the defence put forward may be correct, he must be acquitted.  Even if his version is rejected, the prosecution still has to prove its case beyond reasonable doubt. 

34.  The defendant attempts to explain and demonstrate how his fingerprints got onto the partition at cubicle 8 with the fingertips pointing downwards.  He says he felt dizzy and grasped the top of the partition to steady himself.  When the defendant demonstrates in court, he raised and stretched his right hand above his head.  In his demonstration he conspicuously extended his right middle and ring fingers to impress the court that these fingers went over to the other side of the partition.  However, I find it improbable that he could remember which fingers actually going over to the other side.

35.  On the other hand, the explanation of the defendant is unconvincing.  The door of the cubicle was closed.  He agrees there were handrails on both sides at his waist level of the cubicle.  He had used the toilet every day for about 1½ years.  However, he did not hold the handrails or just press against the door or the walls.  Instead he raised and stretched his hand above his head to hold the top of the partition.  I find his reaction highly improbable. 

36.  As regards the incident in the toilet at midnight, having observed him and considered his evidence carefully I find the defendant’s evidence confusing, if not inconsistent.  For example, in evidence-in-chief he says when he first saw the victim he was walking at the toilet staircase and the victim was sitting on a chair.  During cross-examination, however, he says he first noticed the victim when he was crossing the road and the victim was sitting on a chair outside a shop. 

37.  He is also evasive.  When cross-examined why he did not tell the police about this in his interview, he embarked on long explanations that because he was assaulted by the police, that he was tense in Lai Chi Kok and that the Pakistani interpreter missed that part, and also that he did not mention because the police was biased.  Finally he admits he is not sure whether he had mentioned about this part of evidence. 

38.  I am impressed that the defendant is changing his evidence as he goes along.  I also find that his evidence is against logic and commonsense. 

39.  The defendant describes the toilet as a place for cottaging.  Many homosexuals engaged in homosexual activities in the toilet.  However, according to him, he had not done any inviting acts.  I wonder why the victim, who is a person of thin, slim build, with the weight of 65 kilograms, would choose to indecently attack the defendant who is of much stronger build with the weight of 75 kilograms. 

40.  I also wonder why would the victim stand in such an awkward position to indecently assault the defendant.  As described and demonstrated by the defendant in court, the victim was about 10 inches from him on his left-hand side, however they were standing at a different level.  The defendant was standing on the grille for standing while the victim was standing on the ground behind him.  The defendant demonstrated in court an act of stretching out his right hand to the front with backhand palm towards his right-hand side.  I cannot imagine how the victim could reach the defendant’s penis.  If it is possible, I find it improbable that the victim should choose such a difficult position. 

41.  It is also against logic that when the defendant had resisted the assault by kicking the victim, he did not immediately leave the toilet.  Rather, he indicated to his assailant to go further inside the toilet.  And, ironically, the victim, the alleged assailant, would obey the defendant’s direction instead of running out of the toilet for escape.

42.  I also find it improbable that, knowing the assailant was still in the cubicle area, the defendant would still remain in the toilet washing his hands for five minutes.  It is affront to common sense that the defendant did not immediately tell the police that he was indecently assaulted.  Rather, and surprisingly, he challenged the police officers why they stopped him. 

43.  In cross-examination the defendant says he did not make a complaint because he already kicked the victim and he thought the matter was over, and it was not in his mind when he saw the police.  I find this explanation unconvincing and unreasonable.  I also find it improbable that the police officers would stop him without any reasons. 

44.  As regards the allegation of assault by the police, the defendant says he sustained fracture in his right thumb.  By admitted fact, Exhibit D2, at about 43 minutes past midnight on 8 March 2012, the defendant was taken to Queen Elizabeth Hospital and admitted.  There is, however, no medical evidence to support his claim of the serious injury. 

45.  I find the defendant’s version of indecent assault unbelievable.  I find the defendant an incredible and unbelievable witness.  That said, the burden remains on the prosecution to prove the guilt of the defendant. 

46.  Mr Pierce, counsel for the defendant, has most helpfully set out in details in his written closing submissions some features in the evidence which he submits are relevant in the case.  I have considered carefully everything he has said in his submission. 

47.  The defence says, with the possible exception of PW1, all the prosecution witnesses are of doubtful veracity.  Mr Pierce submits that the victim is confused in describing the sequence of events.  I cannot agree with him.  Apart from whether the defendant said “Give me money”, I find the victim’s evidence clear and simple.  He agrees he did not mention these three words when he gave his witness statement.  I find it nothing unusual or uncommon for a witness to remember something in court that he did not remember when written statement was made. 

48.  It is also submitted that the sequence of events differ from the account the victim first gave to PW4 and PW5, i.e. the demand followed by handing over the money and only then being hit by the bottle.  It is said that the victim confirmed there were differences in the versions of sequence of events as related by him and as recorded in his witness statement.

49.  The witness statements of the victim have not been produced to show the alleged inconsistency.  The victim denies in court that he had given different versions.  There is no evidence in court from PW4 and PW5 to suggest that the victim gave inconsistent statement.  Moreover, I find that even if there were the officers might have misheard it.  The victim states clearly the sequence of events in court.  In any case the alleged inconsistency is totally immaterial.  It does not affect the overall credibility of the victim. 

50.  There is criticism of the victim’s demeanour.  I find the criticism unfounded.  On the contrary, he impresses me as an honest and credible witness.  Despite the skilful cross-examination of Mr Pierce, the victim stands firm and unshaken.  His evidence is clear, simple, consistent and reasonable. 

51.  PW2, the fingerprint expert, is criticised because he has used the word “throw” instead of “drop” when describing how the defendant dropped the bottle into the rubbish bin.  It is also suggested that PW2’s reaction was unusual when he embarked on long explanations to explain the two words.  I find nothing in this criticism.  PW2 only gave explanation as to queries raised by defence counsel.  The two words in Chinese are often loosely used to mean the same thing.  On the other hand, his finding of the defendant’s fingerprint is undisputed.   

52.  PW4 and PW5 are criticised for not searching the rubbish bin for the missing Thai banknote.  It is submitted that unless the officers already knew for some reason that the Thai banknote could not be found there, it would be unusual that they took no action about the bin. 

53.  I agree that a more thorough search would be expected of the police officers.  However, the fact that the search was done in a careless or negligent manner does not necessarily mean the officers are not believable.  It was a matter of judgment.  Officers of different mentality, background and experience might come to different judgments.  The same would apply to the criticism that no question was asked of the defendant about the bottle.   

54.  The end result of the officer’s cursory search is that the Thai banknote was not found.  This can only be evidence in favour of the defendant, not evidence against him.  I cannot see how the cursory search can affect the credibility of the officers.  The point that PW4 did not record down the minor resistance of the defendant is, in my view, neither here nor there. 

55.  Mr Pierce has placed emphasis on the facts that the defendant’s finger impressions were not found on the glass bottle, that the Thai banknote was missing and that the robbery was by instalments. 

No fingerprint on the bottle

56.  The fingerprint expert, PW2, says it is possible that no fingerprint of value can be lifted from the glass bottle even if it has been held by a person.  Examples include that the bottle was held too forcefully or it had been cleaned.  It is noted that the defendant says he had washed his hands and face for five to six minutes.  He might have cleaned the bottle or damaged the fingerprint, intentionally or unintentionally.   However, I will not speculate about it.

57.  Suffice it to say that the bottle should have been held by someone, if not the defendant, before it was placed in the rubbish bin, yet PW1 could not even find any trace of human fingerprints, not to say a complete fingerprint.  In my judgment the fact that no trace of fingerprint was found on the glass bottle can therefore prove nothing and cast no doubt.   

Thai Money Not found

58.  The Thai banknote could not be found.  What can the missing banknote prove?  There are many possibilities.  One possibility the court must consider is that it is only a fabrication and non-existent.  Another possibility is that the defendant had disposed of it in a way that it could not be discovered.  I will not embark on any speculation to make a finding of fact. 

59.  The real question is does it cast any doubt on the prosecution case.  One needs to ask this: If the robbery allegation was a fabrication, why did the victim need to make up a non-existent banknote which the police could not possibly find on the defendant?  The fabrication can only lead to a clue to the false report.  The conclusion I make is that the missing Thai banknote is neither here nor there and casts no doubt in the prosecution case. 

Robbery by Instalments

60.  As regards the criticism of “robbery by instalments”, a term used by Mr Pierce, I find that it was nothing unusual.  It was a case when the defendant got an inch he asked for a mile.  It casts no doubt in the prosecution case. 

61.  There are some trivia referred to in the written submission of Mr Pierce about the evidence of the prosecution witnesses.  For example, PW5 says he only knows a little English but he is a university graduate.  I find that he is only being humble. 

62.  I am not repeating all the trivial criticisms here.  Suffice it to say that I have considered everything that has been said by Mr Pierce, and I find that there is nothing in the criticisms.

Finding of Facts

63.  Having considered the totality of the evidence, I do not believe that the defendant is a credible witness.  I reject his evidence that he had left his fingerprints on the cubicle partition when he felt dizzy in the cubicle earlier on the day in question.  Even if it were true, it will not affect my finding on the credibility of the victim. 

64.  I reject the defendant’s evidence that he was indecently assaulted by the victim, or assaulted by the police officers.  I see no reasons why the police officers had to conspire with a citizen who they do not know and make up a case against an innocent person. 

65.  I find all the prosecution witnesses honest and reliable witnesses.  I accept the evidence of the victim, PW4 and PW5 as the facts of the case.  I find that the victim’s Nokia mobile phone was found on the defendant.  This is indeed an overwhelming case.  I find that the defendant used a glass bottle to threaten the victim and thereafter robbed him a total of HK$250, Thai Baht 100 and a Nokia mobile phone.  During the robbery the defendant hit the victim’s left middle finger which became red and swollen.  No doubt the defendant was dishonest. 

Conclusion

66.  I find all the elements of robbery proved beyond reasonable doubt.  I am sure that the defendant is guilty and he is therefore convicted as charged.