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DCCC 346/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 346 OF 2013
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HKSAR |
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Mohammad Munsur |
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| Date: |
7 August 2013 at 2.41 pm |
| Present: |
Mr William Stirling, Counsel on fiat, for HKSAR |
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Mr Ian Hastings Polson, instructed by Haldanes, assigned by the Director of Legal Aid, for the defendant |
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Reasons for Verdict
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1. The defendant is charged with an offence of robbery.
2. The prosecution allege that on 8 January 2013 on Ng Chow Road in Ta Kwu Ling, New Territories, he robbed PW1, Mr Ma Jinjun, of a wallet containing $6,000 in cash and RMB500.
3. The prosecution case hinged entirely on the credibility and reliability of the alleged victim, PW1.
4. He gave evidence to the effect that he is a merchant trading in recycled electronic material between Hong Kong and China.
5. He maintained that on the day of the alleged offence, 8 January 2013, at about 10.50, he was in his private car in Ping Che, Ta Kwu Ling, looking for recycled electronic material. He said his car was stationary outside some spare ground next to a soccer pitch on Ng Chow Road.
6. He maintains that he was making a phone call and whilst making that phone call he was approached by the defendant, who held a knife to his throat and that it was in those circumstances that his wallet was stolen. He said that the defendant thereafter made off and he later reported the matter to the police.
7. PW1 maintained that he had seen the defendant in the vicinity of where this incident occurred on about five or six previous occasions.
8. On 4 March, PW1 saw the defendant and reported his sighting of the defendant to the police and alleged that he was the robber involved in the incident on 8 January.
9. The defendant was subsequently arrested and in a video recorded interview admitted that he knew the alleged victim and said that he had worked for him for about four years and he said that he had had a dispute with PW1 concerning payment of wages. As regards the knife that was allegedly used in the attack, he said that he had on a previous occasion seen the knife in the trunk of PW1’s car and he had used the knife as working tool previously.
10. A police officer called to the scene of the incident gave evidence that after the robbery had been reported, he made a search of the area and found a knife which PW1 said looked like the knife that was used in the attack upon him.
11. The defendant elected not to give evidence.
12. The prosecution bring these proceedings and they are required to prove the guilt of the defendant beyond reasonable doubt. The defendant does not have anything to prove.
13. The defendant elected to remain silent. He is entitled to do so and I can draw no adverse inferences against him for electing to remain silent.
14. As has rightly been stated by both counsel, the prosecution case hinged entirely on the credibility and reliability of PW1. There was no corroboration of his evidence.
15. The defence case, as put to PW1 and as set out in the record of interview of the defendant, was that there had been dealings between PW1 and the defendant, not in the circumstances described to the court by PW1.
16. The defence case was that PW1 had over a period of four years used the services of the defendant to assist in his business of collecting second-hand electronic goods for sale on the Mainland and there had subsequently been an argument as to monies owed by PW1 to the defendant.
17. The evidence of PW1 was riddled with inconsistencies and improbabilities.
18. Inevitably, in cases such as this, the court would expect some inconsistencies between what a witness records in contemporaneous witness statements and the evidence given in court.
19. However, the inconsistencies in this case were of a fundamental nature.
20. By way of example, PW1 gave evidence as to how the defendant approached him prior to the incident. He said he walked towards him from the front of the car, but in his witness statement made on the same day, he stated he did not see where the attacker came from.
21. There were major discrepancies and inconsistencies as to the circumstances in which PW1 claimed to have seen the defendant on occasions before the alleged robbery.
22. In his evidence-in-chief, PW1 claimed that when the defendant held a knife to his throat, it left red lines across his neck.
23. There was no mention of this in his witness statements.
24. PW1 did not mention this to the officer who attended the scene very shortly after the alleged robbery. That officer said that he saw no marks on the neck of PW1 and that had he done so he would have made a note of such injury.
25. PW1 said that the knife recovered from near the scene of the alleged attack was recovered from a bush.
26. The officer who received the knife said that it was recovered from an open piece of ground and, in fact, he took a photograph of where it was recovered and that photograph was part of the photograph album (Exhibit P1).
27. PW1 failed to mention in his witness statement that he knew where the defendant lived. When he was giving evidence he said he was able to point out the precise house in which the defendant lived and said he had seen him in the vicinity of that house on a number of occasions.
28. In addition, PW1 was a vague and at times aggressive witness in response to very proper questions put to him in cross-examination. His behaviour bordered on being a contempt of court.
29. For all those reasons, I find that the prosecution have not established the guilt of the defendant to the required standard and he is entitled to be acquitted. The charge will be dismissed.
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