HKSAR v. USMAN SAQIB

DCCC 98/2023

[2024] HKDC 539

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 98 OF 2023

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REASONS FOR VERDICT

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1.  The defendant faces a single charge of robbery. This is alleged to have occurred on 11 September 2022 at the five-a-side football pitch in Kik Yeung Road in Yuen Long.

2.  A brief description of the offence is that the 1^st prosecution witness is a Pakistani male.  He was sitting near the football pitch with his girlfriend, PW2, an Indonesian helper.  At that time, the defendant is said to have approached him, told him to give him all the money or he would hit him. The witness PW1 refused then the defendant is said to have slapped his face, took the money, some $700 from his shirt pocket.  That had fallen to the ground.  The defendant is then said to have picked up $300 and went away.  PW2 then reported the matter to the police on his girlfriend’s telephone and the defendant returned to the assaulted PW1 with what appeared to be a bike cable.

3.  The prosecution evidence mainly consisted of the evidence of the 1^st and 2^nd prosecution witnesses, those present at the scene, the arresting officer and a set of admitted facts.  The admitted facts established that the defendant and the 1^st prosecution witness had known each other prior to 11 September 2022.  That the 1^st prosecution witness, the 2^nd prosecution witness and the defendant were all admitted to be present near the football pitch at Kik Yeung Road, Yeung Long at the material time.

4.  There was a wire seized nearby that was later evidenced to have been used in the assault.  There was also a CCTV recording of the vicinity.  The defendant was arrested at 1355 hours the same day about 800 metres from the incident.  And the 1^st prosecution witness was found to have sustained an abrasion to the chest wall.

The Witness Evidence

5.  The evidence at trial from the 1^st prosecution witness was that he was from Pakistan, that he had known the defendant for 3 to 4 years. He was at the football pitch for social reasons.  He said that the defendant had come over on a bicycle and had dismounted.  The defendant was carrying a glass bottle.  He demanded money and if the money was not given, he would be hit with the bottle.  The defendant had then slapped his face, reached for the money in PW1’s shirt pocket that was totalling HK$700, took it out, it fell to the floor.  The defendant took $300 off the floor.  The defendant then left.  PW1 said he used PW’s phone to call the police.  The defendant returned at that time and hit him with a wire or cable.  The defendant left again shortly afterwards and the police arrived.

6.  PW2 had said that she was present but looking at her phone.  She saw the man come over, heard the discussion which she could not understand as they spoke Urdu.  She was some 2 feet away from them.  PW2 said she had heard a slap.  She saw “the man” as she put it put his hand on PW1’s shirt pocket.  She later saw the defendant hit PW1 with a cable.  She thought it looked like rubber.  She had said she had not seen any money.

7.  PW3 confirmed the arrest of the defendant and the location.  He confirmed the defendant had no money on him on arrest.

8.  In this case the defendant gave evidence.  He admitted his presence.  He admitted slapping PW1 and hitting him with the bicycle cable.  He did however deny asking for money or taking any money.  The defendant had said he went to the park for social reasons and talked to PW1 who was drunk and drinking.  They argued about that.  He said PW1 had used bad and insulting words to the defendant.  He became annoyed and eventually hit him.  Defendant moved away but PW1 had continued to use this insulting language and abuse him so the defendant said he had returned and hit him with a cable from the bicycle.  He said he had left after that.  He did not ask or take any money from PW1 he said.

Legal Framework

9.  In this case the prosecution are alleging an offence of robbery.  They must prove the case beyond reasonable doubt.  The burden of proof remains upon them at all times.  The offence of robbery requires that the prosecution prove the elements of that offence that is the defendant steals and immediately before that at the time of doing so and in order to do so, uses force on any person or puts or seeks to put any person in fear of being then and there being subjected to force.

10.  PW1’s account, if accepted to a criminal standard, would establish and prove that the defendant committed the offence of robbery.  The defendant denies that part of PW1’s evidence.  The evidence is that defendant stole from PW1 and that at the time of doing so used force to do so.  The defendant says the use of force was part of an argument between the two men.

11.  This essentially limits the main issue in the case to one of the credibility or the reliability of the witnesses.  As far as the assessment of that evidence is concerned it is as follows. 

Assessment of the Evidence

12.  The crucial evidence for the prosecution comes from PW1.  The defence submitted that he could not be relied upon for two main reasons.  Firstly, that the 1^st prosecution witness gave some evidence that was not contained in his earlier witness statement and secondly, that the other witness present, PW2, did not see money being taken although she was within close proximity, within 2 feet of the defendant.

13.  There were some matters raised by the defence that were not, in respect of the evidence of PW1 that were not in an earlier witness statement.  PW1 had said in his evidence that the defendant had carried a glass bottle.  The defendant admitted he had had a can of beer in his hand when he got off the bike, and in fact PW1 had said the bottle as part of the initial threat and demand for money.

14.  PW1 had explained in cross-examination that the statement he had given was in English and not in Urdu and his English was perhaps one could call it rudimentary.  It does seem at least possible that PW1’s lack of fluent English skills could cause elements or parts of his description to be missed or confused.  I also had to bear in mind that PW1 was relating both to the police and also in court, elements of a traumatic incident.  It is not uncommon for this to be an unsettling experience.  It leads to matters being recalled at different stages of investigation and in different ways.

15.  Some other contradictions emerged over the matters, such as the length that PW1 and the defendant had known each other.  PW1 had said in his evidence 3 to 4 years.  The defendant under statement only admitted facts which were presumably based on the statement, said they had known each other for 10 years.  In any event I did not consider that figure to be particularly significant as in any view they were well known to each other.

16.  PW1 had said he was assaulted with a wire or cable.  It is a common feature of the evidence of PW1 and the defendant.  In his statement he said this occurred once.  In evidence he said it was up to six times.  The defendant in fact had said that he had admitted striking two to three blows with the wire.  Again, I do not consider this to be significant in assessing reliability especially as what had been recalled by both witnesses is a shocking and traumatic event where memories can differ.  Again the defendant admits this assault.

17.  In respect of PW2 she was prepared to be open about the limits of what she said she saw.  She said in her evidence she was mainly looking at her phone and what she overheard was in another language she did not understand.  However despite this she gave two pieces of evidence that supported PW1.  Firstly, she heard a slap or thump and secondly, she saw the defendant’s hand go to PW1’s shirt pocket.

18.  As I have already indicated in the defendant’s case was that the assault took place but there was no theft, and it was evidenced that the defendant was found some 800 metres away some time later, said he had not gone far, but if he had stolen he would be expected to do so – make a getaway, and no money was found on him.

19.  The defendant had admitted in his evidence that he had no money on him at the time.  There was also noted that he had returned to assault PW1 but PW1 was contacting the police on a mobile phone.

20.  In assessing the evidence overall I bore in mind all the matters raised in submission and I bore in mind also that it was a case where one case contradicted the other.  However, PW1’s account of him being slapped and having his money taken was a consistent feature of his evidence throughout.  He had no reason to allege a theft, especially when the defendant was prepared to admit the assaults.  On this crucial issue I found PW1 to be an honest and reliable witness and I was prepared to place full weight on his evidence that the theft had taken place.  And in the circumstances the stealing amounted to a robbery.

21.  I did find that in respect of the evidence already given by the defendant he was not honest and reliable.  He was prepared to admit that part of the evidence that could not be denied - the assaults that were plain, PW2 was present when they occurred and there was medical evidence of an injury to the victim.  Overall I rejected his evidence in respect of whether or not he had taken and seized the money.  I found it to be self-serving and unreliable and I rejected it.  Having accepted PW1’s evidence in full as reliable to a criminal standard, it was clear that on that evidence the offence of robbery had been proved beyond reasonable doubt and so I convict the defendant accordingly of that offence.