HKSAR v. KHALID MEHMOOD

CACC 175/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 175 OF 2004

(ON APPEAL FROM DCCC NO. 1239 OF 2003)

----------------------

--------------------

----------------------

J U D G M E N T

---------------------

Hon Stock JA (giving the judgment of the Court):

1. On 26 March 2004 the applicant was convicted by Judge Chua in the District Court of five offences:

(1)	that on 30 April 2003 at a flat in Yuen Long, he robbed Zahid Muneeb of a passport, a watch and some documents;
(2)	that on 6 January 2003 he stole a mobile telephone;
(3)	that on 11 September 2003 at a construction site in Yuen Long he had in his possession a Hong Kong identity card which related to another person, namely, Sabir Hussain;
(4)	that in November 2002 at the same construction site he used that identity card; and
(5)	that between 9 June 2000 and 11 September 2003 he contravened a condition of stay in respect of his visit to Hong Kong in that he remained in Hong Kong after 9 June 2000.

2. He pleaded guilty to the second and fifth charges; but not guilty to the first, third and fourth.

3. He was sentenced as follows: to a term of four years’ imprisonment in relation to the first charge; to a term of six months’ imprisonment in relation to the second, which was ordered to run concurrently with the first save as to one month which was ordered to run consecutively; to 18 months’ imprisonment in relation to each of the third, fourth and fifth charges to run concurrently with each other, and concurrently with the terms imposed for the first and second charges, save as to three months which was ordered to run consecutively.  This made a total of four years and four months’ imprisonment.

4. He now seeks leave to appeal against conviction in relation to Charges 1, 3 and 4; and against sentence generally.

5. This matter has been before the single judge on more than one occasion and in December 2004 matters were drawn to the judge’s attention in relation to events subsequent to the conviction which the judge thought required some examination and research and, to that end, he granted the applicant legal aid; and as a result Ms Moosdeen appears today on behalf of the applicant.

6. The complainant in respect of the robbery charge is a fellow countryman of the applicant, and his testimony was that he met the applicant in 2001 through their work at a construction site in Yuen Long.  He asserted that in April 2003 the applicant said that he had no place to live, so the complainant allowed him to stay at his flat.  However, according to this testimony, on 26 April 2003 he learned that the applicant was an over-stayer and the complainant told him that he could no longer stay there.  Although the applicant left, he did not return his keys.  At about 10 p.m. on 30 April, the applicant turned up with a number of other men banging on the door of the flat.  The complainant called the police and whilst he was on the telephone to them, the door was kicked open and the applicant and other men entered.  The applicant said that he had come to collect his things but in fact he took away the complainant’s passport and other documents and left before the police arrived.  After their arrival, the complainant discovered that his watch had been stolen.  It was not until 10 September 2003 that he saw the applicant again and called the police who arrested the applicant the following day at the construction site.  There they found in his possession the identity card in the name of Sabir Hussain; and the employer’s testimony was that that identity card had been used in November 2002 to gain employment.  Amongst the items found in the applicant’s belongings at his workplace was the mobile telephone which, it transpired, had been stolen.

7. The applicant testified at his trial.  His case was that the allegations against him were fabricated by the complainant who owed the applicant money which the applicant had earned, he said, in his capacity as a cook for the complainant.  He produced alibi evidence that he never visited the premises on 30 April where the robbery was said to have taken place, although he did say that he had arrived at that flat the following day to find, to his great surprise, that the premises had been damaged.  As to the identity card offences, he said he did not know where the card found by the police had come from, and that he had never produced it in support of his application for work.

8. The trial judge rejected the applicant’s testimony and believed the prosecution witnesses and convicted the applicant.

9. The matter which the single judge wished to have investigated was an assertion that the applicant, then acting in person, pressed upon the court, namely, the suggestion that the complainant was connected with a murder that had taken place here and had fled Hong Kong.  Given that the credibility of the complainant was clearly an issue in the trial with which the present application is concerned, the single judge was concerned that this Court should know as much of the circumstances alleged as possible so as to decide whether those circumstances might impact upon the safety of this conviction.

10. The matter has indeed been investigated and the facts, so far as they are known, have been placed before this Court.  It is the case that the complainant is wanted in relation to an alleged killing which took place in late August 2004.  It is also the case that shortly after that killing, the complainant left Hong Kong.  It is further the case that credit cards of the deceased were used for unauthorized withdrawals.

11. Both counsel have helpfully drawn to our attention the various circumstances in which events subsequent to a conviction might persuade a court to conclude that conviction is unsafe.  This however is not one of those cases.  The material with which we have been presented is not such as would warrant allowing this application.  All there is, is an allegation which has not been tested and which has no connection, direct or indirect, with the case before us.  In so far as it might be said that the allegations themselves, if proven, could reflect against the credibility of the complainant and his trustworthiness, we note that evidence was adduced at the trial that the complainant had convictions for dishonesty.  The judge was aware of this.  The fact that there had been a break-in at the premises was clearly well-established, as was the fact that that break-in was coincidental with a call for help to the police by the complainant.

12. There are a number of other complaints made in relation to the judge’s analysis in relation to these convictions.  It is suggested for example that there were inappropriate interruptions by the trial judge.  We have studied the transcript, and with this complaint we do not agree.  There is also an assertion of a failure to evaluate the evidence properly and we have studied this too and the assertion is without merit. 

13. There is one matter that we have dealt with today in some detail for we felt it warranted consideration.  That was the conviction in relation to Charges 3 and 4, namely, the possession of an identity card relating to another person.  The learned trial judge noted the fact that the picture of the identity card in the name of Sabir Hussain bore a remarkable resemblance to that of the applicant, and having looked at that card briefly at the outset of this hearing we were struck in much the same way, and wondered whether it might indeed have been a card belonging to this applicant; he then using another name at the time of his arrest.  If that were a reasonable possibility then the conclusion drawn by the judge that the card related to a person other than the applicant could not have been said to have been the only reasonable inference to draw.  Our attention has been drawn by Mr Zervos SC in the course of his assistance today to passages in the transcript which showed this matter was carefully addressed by the judge and, further, to testimony of the applicant himself which clearly asserted that he was not the man concerned.  He gave evidence of visit by that person (Hussain) to him, and his defence was that the card was not in fact found on him.  We have studied the photograph further and it does not, on close inspection, bear the identical similarity that we at first thought.  Taking all these matters into account we have satisfied ourselves that there is insufficient upon which to upset the finding of the trial judge whose attention was specifically drawn to this issue. 

14. In the event we are grateful to Ms Moosdeen for examining the transcript, as the single judge invited her to do, but it transpires that her conscientious efforts do not reveal grounds for upsetting these convictions.  Accordingly, the application for leave to appeal against the convictions is dismissed.

15. There is also an application for leave to appeal against sentence.  This depends upon an assertion that the applicant, after his conviction, supplied to the authorities useful information concerning the homicide case.  It transpires that whilst the applicant, having heard that the complainant was wanted by the authorities, did contact the police, he provided them with no useful information.  The application for leave to appeal against sentence is also dismissed.