HKSAR v. MUHAMMAD SAQIB

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1128 OF 1997

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J U D G M E N T

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1. The appellant appeared before a magistrate in South Kowloon Magistracy where he was found guilty on a charge of robbery and another charge of criminal damage. He appeals against conviction on both charges. At the hearing he abandoned his appeal on the criminal damage charge. I allowed the appeal on the robbery charge and set aside the conviction. I now give reasons.

FACTS

2. The victim, a Pakistani, said that on 2nd October 1997 he was at the New Brother Guest House at Flat C5, 6/F, Block C, No.36-44 Nathan Road watching T.V. At about 10.45 pm 2 men one a Napalese and one Pakistani arrived. One asked him to give the telephone no. of the owner. Then the Pakistani slapped him on his face on the left side and the other one slapped his face on the right. He knelt down, held onto his passport and then $3,000 was taken from his pocket.

THE ISSUE

3. The only issue is one of identification. In her statement of findings the learned magistrate in accepting the evidence of the victim stated as follows: -

"The main issue in respect of the Robbery Charge is identification. Defence Counsel submitted that the alleged robbery happened very quickly. PW-1 admitted that he was very scared, confused and nervous during the alleged robbery. Further, there appears to be no dispute that PW-1 and the Appellant had previously stayed in the same Guesthouse. Defence Counsel suggested that PW-1 may have seen the Appellant prior to the alleged robbery and that he may have mistaken him for the alleged robber. He also submitted that it was improbable that the Appellant would remain in the same building if he had been the robber.

In considering the evidence, I have borne in mind that the onus is on the prosecution to prove each and every element of the offences beyond reasonable doubt. If there is any reasonable doubt, the benefit of that doubt must go to the Appellant. It was not in dispute that the Appellant had a clear record. In considering the evidence, I warned myself that that the Appellant was less likely to commit an offence. I also reminded myself that PW-1 was the only material witness in relation to the Robbery Charge. Where the prosecution's case relies solely on the correctness of identification of the accused by one witness, I must bear in mind the possibility of mistaken identification because a mistaken witness may be a convincing one. In particular, I reminded myself of the directions in R v Turnbull.

Although PW-1 admitted that he was nervous and confused during the alleged robbery, he had a conversation with the alleged robber before hand. It could not have been a very long conversation. However, according to PW-1, he was able to observe the face of the alleged robber in brightly lit conditions for about 5 to 7 minutes and he was certain that the robber was the Appellant. I was satisfied that PW-1 was an honest and credible witness and that his identification of the Appellant was reliable. I accepted his evidence. On the other hand, I found the evidence of DW-1 and DW-3 wholly unreliable. Not only was their evidence self contradictory, DW-1's evidence was contradicted by DW-3. DW-3's evidence was based on the arrest of the Appellant for "Fighting". The case before me had nothing to do with fighting. I rejected the evidence from DW-1 and DW-3. I found Charge 1 proved beyond reasonable doubt and the Appellant was accordingly convicted."

4. I am aware that as far as finding of facts is concerned the court is unable to observe the demeanor of the witnesses and is therefore difficult to say that the learned magistrate erred in her finding. But from the totality of the evidence as set out from the deposition I cannot help but come to the conclusion that it is unsafe to convict.

THE DURATION OF THE ROBBERY

5. The victim said that he was able to observe the face of the robber in brightly lit conditions for about 5 to 7 mins.

6. The evidence concerning the whole robbery is as follows; -

7. From the evidence above, it was a continuous act. It was done within a relatively short time. First there was this enquiry about the phone no. of the owner and immediately following that the 2 slaps on PW1's face and the taking of the money and then the 2 culprits ran away. It could not have taken 5-7 mins to do that.

COULD PW1 HAVE WATCHED THE ROBBERS THROUGHTOUT THE ROBBERY

8. When the robbers went in PW1 was sitting down while the 2 robbers were standing up. From the evidence above when the robbers slapped his face he knelt down (p.12 P-Q) or that he bent to one side (p.13 L). No matter which avoiding action he took he could not have still looked at the 2 robbers. After that the robbers took his money and left.

9. So from the evidence above the only time PW1 could have seen the face of the 2 robbers would be when they went in and enquired about the telephone no. of the owner which is a very short duration.

IDENTIFICATION

10. Evidence of identification of the 2 robbers are as follows; -

11. When he was brought down stairs he pointed at the appellant. He was asked: -

12. The immediate response by PW1 as to the basis he could recognise the Pakistani who robbed him was because of his moustache. It is not a very convincing or good basis for his recognising the Defendant because nearly all Indians and Pakistani have moustache. Further the robber he identified wore the same dress which means a blue shirt and blue jeans. It is a rather common type of clothing without striking features.

THE STATE OF PW1

13. Throughout PW1's evidence he said he was very scared. The evidence in which he admitted he was scared are as follows; -

14. There is ample evidence that at that time he was nervous, confused and scared everything happened very quickly.

THE OTHER CONTRADICTORY EVIDENCE

15. When PW1 was taken down stairs by police he said he saw the Defendant standing alone and later he agreed that Defendant was with other people holding a glass.

16. As to whether he telephone the owner, he said he did not but the owner PW2 in evidence said that it was PW1 who rang him.

17. From the totality of the evidence one cannot help but come to the conclusion that the whole incident happened very quickly. The only times PW1 could have seen the face of the 2 robbers was when he was asked the telephone no. of the owner and when he was slapped. From his own admission he was confused, nervous and scared. PW1 could only have a fleeting glance of the robbers. It could not have been as long as 5-7 mins as PW1 had told the learned magistrate.

18. From the evidence it is unsafe to convict and the appeal is therefore allowed and conviction be quashed and sentence set aside.