HKSAR v. SADDAQAT KHAN MUGHAL MUHAMMAD

HCMA 100/2019

[2019] HKCFI 1676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 100 OF 2019

(ON APPEAL FROM ESCC NO 2281 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Introduction

1.  The appellant was convicted of theft and now appeals against his conviction only.  He has abandoned his appeal against sentence.  He was convicted of stealing a mobile phone and a power bank from Miss Lau Chung Ting, PW1 on 18 September 2018.  It was his fifth conviction and he was sentenced to 10 months’ imprisonment.

2.  In Lan Kwai Fong in the early hours of that morning, the appellant struck up a conversation with two young ladies and promised entrance to a nightclub nearby.  They followed him but became scared when he behaved strangely.  They ran away but not before the appellant grabbed a mobile phone attached to a power pack from the victim’s skirt pocket.  They later made a police report and not long after, the police found the appellant nearby with the power pack in his pocket and the mobile phone behind some plant pots not far away.

3.  The issue was whether the appellant did steal from PW1.  Credibility of the witnesses was the issue.

4.  The appellant was also late to court on two separate occasions and that was despite a warning not to be late on the second day of trial.  The magistrate did not accept his reason for being late and estreated his bail money.  He now appeals against that forfeiture order.  He has little means and no income as a Form 8 recognizance holder.

The prosecution’s case

5.  In the early hours of 18 September 2018, the two young women, PW1 and PW2 were approached by the appellant outside Hard Rock Cafe in Lan Kwai Fong.  It was PW1’s birthday and she had been celebrating with friends, including PW2.  The appellant spoke to PW2 and offered to get them entrance into a bar for $500.  PW1 saw PW2 hand him a $500 note.  They followed him towards the Fringe Club onto Lower Albert Road.

6.  Outside the Fringe Club the appellant suddenly started shouting loudly which scared the two women.  He told them not to move and he called somebody on his mobile phone.  PW2 grabbed PW1’s hand and they ran away.  PW1 felt the appellant pull something out of her left skirt pocket before she tripped and fell to the ground.  She stood up and saw the appellant holding her power bank in his hand; she saw her mobile on the floor.  They had been in her skirt pocket.

7.  The victim tried to grab the power bank out of the appellant’s hand but failed.  When she saw the appellant bend down to pick up her phone she took the opportunity to run away.  There was nobody around in front of the Fringe Club.  The victim eventually found PW2 and they tried to locate her mobile phone; they went back to the Fringe Club but had no success.

8.  They decided to call the police and with the help of the police they located the appellant at 2:05 am outside the 7‑Eleven shop on D’Aguilar Street.  The girls identified the appellant and he was searched.  The police found the victim’s power bank in the appellant’s pocket and her mobile phone a little distance away behind some flowerpots in front of Entertainment Building.  When the items were in the victim’s skirt pocket they were actually connected and charging but when the power bank was found in the appellant’s pocket, the charging cord was missing, presumed discarded by the appellant. The appellant was arrested and later at the police station under caution he denied stealing the mobile phone and the power bank.

The defence case

9.  The appellant elected to give evidence.  The defence case was that he had, prior to that day, met PW2 in person.  They had already met on a dating app called “Skout” and her pseudo‑name was Sweetie Tang.  They had met for dinner in Kwun Tong where the appellant had treated her to dinner and PW2 had asked him to buy her gold bangles.  He did not have any money at the time and promised to buy them before their next meeting.

10.  Prior to meeting her in Lan Kwai Fong on 18 September, the appellant had purchased two gold coloured bangles in Wan Chai for $95 each.  They arranged to meet outside Hard Rock Cafe about 1 am.  She had told him that she could not leave home until her parents were asleep.  After they met, the appellant offered to take her and her friend, PW1 to dinner in Wanchai and they walked to the Fringe Club where there was a taxi stand.

11.  On the way to the taxi stand, PW2 asked the appellant to show her the gold bangles and demanded to know the cost.  When he told her that they were less than $200 she became angry, snatched a $1,000 note out of his hand as well as his power bank.  He shouted at her to stop her but they ran away.  He did not chase them because he did not want to scare them. Whilst PW2 ran away, she dropped his power bank.  He retrieved it and went to sit outside the 7‑Eleven store.  This power bank could only charge Samsung phones not iPhones.

12.  He did not call the police nor did he tell the police when they intercepted him outside 7‑Eleven store and accused him of stealing from PW1 that PW2 had stolen $1,000 from him and his power bank before dropping it.  He did not report her because he thought of her as a younger sister or a daughter and he did not want her to get into trouble. He said that he left the matter “in God’s hands and to God’s will”.  Both the prosecution witnesses, PW1 and PW2 denied the defendant’s case in its entirety.

The magistrate’s findings

13.  The learned magistrate identified two issues to be resolved; was it the appellant who snatched PW1’s belongings and did the silver power bank belong to PW2 or the appellant himself.

14.  The court below considered the correct burden of proof and standard of proof.  Her finding was that after considering the evidence in her court, she found the prosecution witnesses to be honest, reliable and witnesses of truth.  She rejected the appellant’s case in its entirety.  She did not believe he was acquainted with PW2 on an online dating app.  She concluded that he fabricated his evidence in order to provide an explanation as to how he was in possession of the silver power bank.  She believed that he made up his evidence to explain away why the police found that in his pocket.

15.  It was noted by the learned magistrate that when the appellant said in chief that the power bank was his and initially stolen from him, he also referred to notes he had made during the trial to read out the name of the power bank he had recorded down.  In cross‑examination, he vehemently denied he was reading out the brand of his power bank; he was referring himself to discrepancies he had noted down when the prosecution witnesses had given evidence.  However, he was not being referred to the evidence of those witnesses at that moment.  It was put to him but denied that he did not know the make of his charger and had to refer to the evidence given by the victim herself of which he had made a note.

16.  The learned magistrate took into account his referring to his notes to give evidence about his own power bank and the fact that he did not report the crime against him to the police even though they were arresting him on the basis of false allegations.  It is clear that she found these facts to be unbelievable and led to her conclusion that he was fabricating a story to explain away why he was in possession of PW1’s power bank.  In addition, she noted that the stolen mobile phone was not far from the appellant and hidden by flowerpots.  She found proved beyond reasonable doubt that he had stolen both PW1’s iPhone and power bank.

Grounds of appeal

17.  The perfect grounds of appeal set out three grounds of appeal.  The first ground was that the learned magistrate erred in finding PW1 to be an honest and reliable witness without giving sufficient regard to the question of whether it was inherently probable for the appellant to snatch those items connected together from her skirt pocket whilst she was on the run.  There was also a failure to address a material inconsistency in PW1’s evidence as to whether she saw the appellant taking her phone. 

18.  The prosecution submits that there was no material inconsistency, PW1 said under cross‑examination that she agreed that she never saw the appellant actually taking her phone out of the pocket whereas in re‑examination she said she saw the appellant picking up the phone meaning, from the ground.  Her evidence was consistent in that she felt her phone being taken from her pocket but she did not actually witness the appellant doing it. She then saw it after it fell to the ground.

19.  I have been referred to Stock JA (as he then was) in R v Kwong Wing On & Anor HCMA 574/1996 where he said,

“I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed, if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

20.  PW1’s evidence was that suddenly the appellant shouted which frightened them.  She turned to leave quickly and felt something being taken out of her pocket by the only possible person near them and that was the appellant.  She turned and saw him holding her power bank and the phone on the floor.  The learned magistrate found no material discrepancy and nor can I.

21.  I reject the submission that maybe the victim dropped her phone which was why she went back later to see if she could find it.  The evidence is that the appellant took it and then it was found on a different street behind a flowerpot close to where the appellant was intercepted.  The other item stolen was found on the appellant but a power bank does not have the same distinguishing and identifying features as a person’s mobile phone so an effort to hide the phone makes sense.

22.  It was argued it was inherently improbable the appellant was able to snatch the phone out of the skirt pocket, this was not addressed by defence counsel in his final submissions to the learned magistrate.  The learned magistrate therefore, did not address this point. I was referred to the photograph 17 of exhibit P4, a photograph of the skirt pocket and find no merit in this ground.  This was an open pocket with a wide mouth.  There is no merit in ground 1.

23.  In ground 2, it is submitted that the learned magistrate erred in making an adverse finding when she rejected the appellant’s evidence that he and PW2 had already met on a dating app and in person.  She has not given any reason as to why she thought this was wholly and inherently incredible which is unfair to the appellant.

24.  In oral submissions, Mr Chan for the appellant suggests that the learned magistrate rejected his evidence as illogical that they had met on a dating app and had dinner which led her to reject everything else the appellant said in evidence.  Her finding was that the major illogicality in his evidence was that he insisted they had met before through a dating app.

25.  However, this is a misconstrued understanding of the Statement of Findings.  In para 24, the appellant’s account of what occurred was considered to be inherently suspect, untruthful and, frankly, unbelievable.  What the Magistrate goes on to say is that she found it most unbelievable that they had met on a dating app; she found this wholly inherently incredible.  It cannot be construed that because she found this so unbelievable, therefore, nothing else he said was believable.

26.  The learned magistrate goes on in para 25 to say that she considered all the evidence and submissions and found that the appellant’s account to be an obvious fabrication designed to provide an explanation as to how he came to be in possession of the silver power bank. This means she went on to reject all of his evidence in its entirety.

27.  I accept that the magistrate could have given more specific reasons why she rejected the appellant’s evidence but I agree with the respondent’s submission that it is obvious from the Statement of Findings why the appellant’s evidence was considered so unbelievable.  The respondent notes that the appellant has made much of his dire financial situation in Hong Kong after all, he is unable to work here as an asylum seeker.  Yet, when $1,000 was snatched from him, he did not call the police or even tell the police when they came to arrest him for what he says was a false report.  If his evidence is to believed, he goes on to protect PW2 by saying under caution that he did not steal the phone and the power bank rather than declare the power bank as his own.  His explanation that he was leaving it in God’s hands is inherently unbelievable.

28.  The respondent submits that no evidence of the dating app was submitted nor any record of their plans to meet up that night. If they communicated by phone there would have been a record.

29.  It makes absolutely no sense why if PW2 did steal $1,000 from the appellant, PW1 called the police to falsely report her mobile phone and the appellant’s power bank stolen.  If the appellant is to be believed, he was the victim but did not call the police yet the predatory girls who stole from him decided to falsely accuse him and perhaps hide PW1’s phone near him to strengthen the evidence against him.  This is why the appellant’s evidence is inherently incredible.

30.  Ground 3 is related to the power bank and how it was not compatible to an iPhone but in essence it is a repetition of ground 1, concerning the findings of credibility of witnesses and the appellant.

31.  It was submitted that there was a failure to give sufficient regard to the inherent probabilities in the appellant’s evidence relating to the ownership of power bank and his prior acquaintance with PW2. These are both matters dealt with by the learned magistrate.  She refers to the appellant having to refer to notes when asked what make his power bank was and obviously did not believe his evidence as a result.

32.  It is submitted that the question of whether the power bank could connect only to a Samsung phone could cast doubt on the prosecution case that it belonged to the victim.  Since her phone was an iPhone and not a Samsung how could the power bank belonged to her?  It was put to the appellant in cross‑examination that there was a connection cable for the victim’s iPhone when it was stolen but it was missing when the power pack was found in his pocket.  He said that he had no idea if a connector could make the power bank compatible with an iPhone and accused the prosecutor of stupidity when he put to him that the appellant disposed of the connector in order not to get caught.  Without further evidence, if the magistrate believed the victim’s evidence then the question of compatibility of power bank is resolved.

33.  It was also submitted in ground 3 that it was inherently probable that he shouted loudly outside the Fringe Club because he had been robbed.  It is submitted whereas the evidence of PW1 and PW2 was silent on this issue.  If this is in reference to the hue and cry of the appellant outside the Fringe Club then the prosecution witnesses gave evidence that he did shout loudly and angrily, ordered them to stay which frightened them into running away from him.  They denied that he shouted because PW2 stole his money.

34.  Mr Chan has submitted that the fact the prosecution witnesses went with the appellant up to Ice House Street from Hard Rock Cafe indicates that PW2 already knew the appellant.  This lent credence to the appellant’s version of events.  The learned magistrate believed the prosecution witnesses which meant she found their explanation as to why they walked to the Fringe Club credible.

35.  A magistracy appeal is an appeal by way of rehearing, that is to say, a rehearing on the evidence before the magistrate, the principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei & Ors [2012] 4 HKLRD 383 by McWalters J (as he then was).  He said the appellate court is required to assess the evidence and come to its own conclusion and is required to make up its own mind as to whether that evidence proves the essential elements of the offence beyond reasonable doubt.  An appellate court will not depart from a magistrate’s finding unless it is satisfied that the finding is “plainly wrong”.

36.  As far as the facts are concerned, the appellate court should appreciate that the magistrate enjoyed the advantage of having seen and heard the witnesses in court, whereas the appellate court can only rely on the transcript.  Whether a witness is credible or reliable is a matter entirely for the magistrate to decide.  However, if the findings of fact made by the magistrate are unreasonable or illogical or contain inherent improbabilities; or if in dealing with the evidence the magistrate erred in his reference to material facts, or omitted or failed to consider material facts, then the conviction will be rendered unsafe.

37.  The magistrate identified the issues in this case and found against the appellant because she found his evidence unreliable and the evidence of the prosecution witnesses credible and truthful.  She found it proved that he stole from PW1 and not that PW2 stole from him.

38.  I have reassessed the evidence and read the transcripts of the second day of trial.  The unchallenged evidence that supports this finding includes:

a.   The fact that it was the prosecution witnesses who reported the theft to the police soon after the event occurred.

b.   The fact that the appellant did not call the police despite losing what to him is a large amount of money.

c.   The appellant was found nearby and identified by the prosecution witnesses in front of the arresting police officer.

d.   The power bank that the victim identified as hers was found in the appellant’s pocket.

e.   The appellant said under caution at the police station that he did not steal the iPhone and the power bank.  Why would he effectively accept that the power bank belonged to PW1 when he says it was his?

f.   A $500 note was also found in the appellant’s possession.  PW2 said she had given the appellant $500 as entry fee to a nearby club or bar.

g.   PW1’s stolen mobile phone was found behind a flowerpot near where the appellant was intercepted by the police.  This was far from Ice House Street.

39.  There is no reasonable justification to go behind the learned magistrate’s finding on the credibility of the witnesses.  She had the advantage of hearing and seeing them give evidence and study their demeanour.  This is not a case in which the conclusion is against the weight of the evidence nor is it one where the judge has not considered or evaluated the evidence properly.

40.  I find no basis to interfere with the magistrate’s findings of fact and her assessment of the credibility of the witnesses.  After I have re‑evaluated the evidence presented, the evidence proved beyond reasonable doubt it was the appellant who stole from PW1.  Therefore, there is no substance in the grounds of appeal and the appeal against conviction is dismissed.

Forfeiture of bail order

41.  On 5 December 2018, the appellant’s trial was set down for one day on 25 January 2019 at 9:30 am. At 9:40 am that day, there was no response from the absent appellant.  Defence counsel had been unable to contact him by phone.  He had been told to attend the Duty Lawyer Office at 9 am but failed to appear.  The trial was stood down until 10:10 am.  At 9:55 am, the learned magistrate was told that the appellant had appeared in Court 1, the plea court.  After that, defence counsel needed time for instructions before the trial commenced.  The trial went part heard to 11 February 2019.  The appellant was specifically reminded to be on time for 9:30 am when his trial resumed.

42.  On 11 February 2019, the appellant was absent at 9:36 am.  Defence counsel contacted the appellant who said he overslept and woke up at 9:20 am.  He only lived in Wan Chai, several stops on the MTR to Eastern Magistrates’ Courts.  The learned magistrate stood the matter down until 10 am and resumed at 10:07 am.  The appellant had told his defence counsel at 9:50 am that he would be in court within 10 minutes.  He did not appear within 10 minutes and court eventually resumed at 10:37 am.

43.  The explanation offered for his tardiness was that he had overslept and did not set an alarm clock on his mobile phone because he did not know how to; an explanation rejected by the learned magistrate.  Defence counsel was given an opportunity to take instructions and submitted that the appellant had borrowed the bail from a friend and asked the court not to estreat it.  The court did not accept his explanation or apology and forfeited his bail.

44.  There is now a second explanation and that is he was delayed because of a traffic jam which was not raised before the learned magistrate.  This is not credible if he was on the MTR from Wan Chai to Eastern Magistrates’ Courts.

45.  The appellant did not deny he was late on both occasions nor did he deny that he was given a specific warning after the first occasion.  Pursuant to section 9M, Criminal Procedure Ordinance Cap 221 if the appellant admitted to bail failed, without reasonable cause, to surrender to custody as shall have been appointed by a court, the court may, whether or not that person has been convicted of an offence order that the whole or part of any bail deposited for the purpose of securing his surrender to custody shall be forfeited to the government.

46.  The learned magistrate did not find his explanations to be reasonable excuses and considered the fact he had been given more than one opportunity to adhere to his bail in a timely manner yet failed and the reason he failed was because he overslept.  The appellant is not a young teenager but a grown man who should have paid heed to the warning.  On each occasion he was not just a few minutes late and did waste valuable court time and resources.

47.  The learned magistrate was well within her rights to forfeit his bail and ensured she did not do that until she had given him an opportunity to explain why he had failed to surrender at the time appointed by court and why she should not forfeit part or all of his bail.

48.  The submission from Mr Chan that the forfeiture order should not have been made on 11 February unless it was clear that on 11 February the trial would be adjourned to another day would, if accepted, defeats the purpose of that section.

49.  The last point is whether the learned magistrate should have considered it appropriate only to forfeit part of the bail money because of the appellant’s circumstances; he is an asylum seeker with no income.  There was a bare assertion that the bail money had been borrowed.

50.  A court considering a forfeiture can take into account factors such as the length of the delay, the reasons given for the absence and the consequences of the delay.  If the appellant had not been late on the first day and arrived as requested at 9 am at the Duty Lawyer Office then the trial might very well have started in a timely manner at 9:30 am, the appointed time.  Parties had estimated one day was sufficient for this trial and if the appellant had not been late then there may not have been a necessity to adjourn it part heard.  This factor should also be taken into account.

51.  I find the learned magistrate was well within her rights to forfeit bail; she had ample justification and his explanation was not a reasonable cause.  There was jurisdiction to forfeit bail.  I will not interfere with her discretion to forfeit the entire amount of bail.

52.  The appeal against conviction and forfeiture of bail order must be dismissed.