HKSAR v. JUNAID AHMED

HCMA 245/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 245 OF 2011

(ON APPEAL FROM ESCC 147/2011)

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BETWEEN

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J U D G M E N T

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1.  On 22 March 2011, the appellant was convicted at Eastern Magistrates’ Court of robbery by Mrs Adriana Tse and he was sentenced on the same day to 2 years’ imprisonment.

2.  The appellant now appeals against conviction and sentence.

3.  The robbery was directed against a severely handicapped beggar at the IFC building in Central.  The defence at trial suggested that the appellant’s arrest was the result of a misidentification of the true culprit, if indeed there was a culprit at all, because the appellant’s own case was that no crime was ever committed and the police had simply framed him.

4.  There was only one witness for the prosecution although a number of other facts were admitted at trial.

5.  PC 1338 (PW1) was patrolling with another officer in the vicinity where the offence was alleged to have taken place when he saw a Pakistani male squatting down to face a beggar.  He then noticed a fight break out over the possession of a cap.  PW1 then saw the Pakistani, who he alleged was the appellant, hitting the beggar 3 times.  As a result, PW1 chased after him shouting at the Pakistani that he was a police officer and for the man to stop.  A short chase ensued before the appellant was intercepted.  PW1 alleged that the appellant held $158.50 and a cap in his hand.  The appellant said nothing when he was asked if the cap belonged to him and if he knew the Chinese man he had been with.  So he was then arrested.  PW1’s account was that the appellant had never left his sight from the time of the incident and, after the incident, it took about half an hour before the appellant was taken away from the scene.  He said that during this time nobody had approached him or the appellant to say that he knew the appellant.

6.  The last point is relevant in this way.  The appellant, who is 27 years old and was, at the time of the offence, unemployed and receiving financial support from the United Nations in Hong Kong pending the determination of his refugee status, said that he had been with a friend and was making his way to Lan Kwai Fong to meet this friend’s girlfriend.  As he passed the beggar on the crowded walkway near the IFC building, he said he placed a $10 note in front of the beggar and walked off.  He was then stopped by two men who claimed they were police.

7.  At trial, defence counsel made a number of criticisms of the evidence given by PW1 which the learned Magistrate duly considered in her reasons for convicting the appellant.  She found that PW1’s evidence had been given honestly.  Her acceptance of what PW1 had said left no room for a mistake to have been made.  Furthermore, the evidence given by the appellant was found to be “inherently improbable” and the Magistrate rejected the suggestion that the appellant had been framed for an offence which he had never committed.

8.  I have been able to review the papers in this case and, of course, I have heard from the appellant in today’s proceedings.  There is no merit in the appeal against conviction and it is dismissed

9.  This is also an appeal against sentence.

10.  During the trial, because of a grave error on the part of the prosecuting counsel, it had been an agreed fact that the appellant had a clear record.  This was only corrected after the verdict had been given and the Magistrate had this to say about it:

“After the Defendant was convicted, I was informed by the Prosecution that she had failed to check the Defendant’s record before she signed the admitted facts and that the Defendant had 3 previous convictions, namely for theft, burglary and possession of dangerous drugs. Counsel admitted that he knew about these convictions all along and he could not explain why he had signed the admitted facts. The Defendant indicated that he disagreed with the admitted facts when they were first read to him in Court because he did not have a clear record. When the Court stood the case down for Counsel to take further instructions, he explicitly told Counsel the reason for his disagreement. However, Counsel insisted that he agreed to those facts. He therefore agreed to the admitted facts when they were read to him again. All parties were responsible for misleading the Court but I did not take this into consideration when I considered sentence.”

11.  If it is in fact correct that defence counsel had allowed the court to be misled in this very serious way, I am surprised that this was not pursued further at the time.  There had been negligence on the part of the prosecutor but, on the face of it, the court was deliberately misled by defence counsel who seems to have accepted that this was so.

12.  Nevertheless, this has nothing to do with the present appeal and all that needs to be said about it is that the Magistrate correctly had no regard to that aspect when dealing with sentence.  She noted that the appellant had been previously sent to prison for 20 months for burglary and also had previous convictions for theft and drugs.  There can be no criticism of the starting point of 2 years in this case, for this was a mean offence on a completely defenceless beggar.  There was no remorse on the part of the appellant and, as a result, there was no room for a discount.

13.  The appeal against sentence is dismissed.