HKSAR v. JAVED, QAISAR

HCMA 106/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 106 OF 2003

(ON APPEAL FROM NKCC 8075 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The Appellant was convicted after trial of robbery and sentenced to 18 months' imprisonment. He pleaded guilty to a breach of condition of stay by overstaying, and was sentenced to 2 months' imprisonment in respect of that, to be served consecutively.

2. The case against the Appellant on the robbery can be shortly stated. The victim said that he had met the Appellant a couple of times in Pakistan and happened to bump into him here in Hong Kong; that they struck up a conversation in the street and the Appellant asked the victim to continue the conversation at a place nearby.

3. Once they reached this place - it was by a bridge - four other persons appeared. One punched him in the stomach, another person held a knife to him. At that moment, the Appellant took the victim's waist bag which contained some money and his passport. The Appellant reported it to the police once the men had made off. That was on 13 December.

4. The victim made great efforts to try and get his passport back, which included asking around their circle of common acquaintance, and from a friend he managed to get the Appellant's mobile telephone number and he made an appointment to meet him at a McDonald's. The victim told the police what was going on. They were there present and arrested the Appellant.

5. The Appellant denied being a party to the robbery. He gave evidence before the Magistrate. He said he did not know the victim at all and had merely received a telephone call from the victim, asking for his help in some unspecified way, and that that is why he went to the McDonald's. He said that if he had been guilty of the robbery, he would not have gone there to meet the victim. The Magistrate was thus faced with a straightforward conflict between the two witnesses before him.

6. Today, the Appellant, who is unrepresented, in effect, repeats what he told the Magistrate. Of course, he is quite entitled to do that because it is possible that he could persuade me to a different view but, of course, the difficulty he faces is this, that the Magistrate was in a much better position to judge this than I am. He saw and heard the two witnesses and he describes the victim as being honest, believable, clear, cogent and compelling, and of the Appellant, he said that he was not an impressive witness. And, of course, the point that the prosecution had in the court below was that the inherent probabilities of the situation favoured the victim.

7. The Appellant's case means that the victim had invented a false case against him and deliberately framed him up. There was no room for mistake to run. To invent a crime that did not take place and then to falsely accuse another of it is a truly wicked piece of conduct. Of course, human nature is such that people do very wicked things on occasion.

8. The point is that such wickedness is reasonably to be expected to have a motive. Motiveless malignity in a situation such as this is fanciful as an explanation for the conduct, and there was nothing in the evidence at the trial to suggest any good reason why the victim should invent this case and falsely accuse a complete stranger of it.

9. The nearest the evidence came to doing that was an assertion made by the Appellant that the victim associated with two criminals here in Hong Kong. The Magistrate found that attempt to explain such a wicked act as was alleged against the victim as being one that was unworthy of belief. I agree with that judgment.

10. It follows, in those circumstances, that there is nothing before me to suggest that this conviction was other than a correct one. Accordingly, the order I make in this regard is to confirm the conviction.

11. As regards the sentence, the Appellant has not really argued for a reduction, and he reasonably remarked that the Magistrate must have known the right sentence. This was a serious matter. The Appellant was lucky that he was not tried in the District Court. This was a robbery where a knife was displayed. In those circumstances, 18 months cannot be said to be a day too long.

12. The overstaying was significant. It was an overstay by some 14 months and the 2 months' sentence in that regard was entirely predictable, and it was bound to be consecutive as it was a separate matter and the total sentence produced is one that, in my judgment, is just. Accordingly, I confirm the sentences.