HKSAR v. ANEKE OBINNA LAWRENCE AND ANOTHER

DCCC 668/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 668 OF 2013

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REASONS FOR VERDICT

1.  The defendants plead not guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210.

Introduction

2.  In summary the prosecution case is that shortly after midnight on the 20 April last year Ofoha Nonso Emmanuel was called out for a business meeting in Kam Tin. On arrival Mr Ofoha could not find the caller and when he was about to leave he was robbed of his gold necklace by the defendants.  The defence case as put in cross-examination is that whilst they met Mr Ofoha in the early hours of the 20 April there was no robbery. 

Evidence

3.  The prosecution case relies essentially on the evidence of  Mr Ofoha (PW1).  A medical report of Mr Ofoha’s injuries has been read into evidence pursuant to section 65B of the Criminal Procedure Ordinance, Chapter 221 (exhibit P3) and the production of telephone records of Mr Ofoha’s mobile phone have been admitted pursuant to section 22A of the Evidence Ordinance, Chapter 8 (exhibit P4).  Four police officers who were involved in different stages of the investigation have also testified.  These were DPC 58983 (PW2), SPC 47743 (PW3), Sgt 22497 (PW4) and PC 2634 (PW5).  The arrest of the defendants has been admitted together with the production of photographs (exhibit P2), pursuant to section 65C of the Criminal Procedure Ordinance (exhibit P1).  

4.  The defendants have both elected to remain silent.  No witnesses were called on their behalf.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.  This does not establish their guilt. 

5.  Admitted in evidence is that both defendants have clear criminal records (see paragraph 4 of the admitted facts, exhibit P1).  I direct myself in accordance with the decision in HKSAR v Tang Siu Man [1997-98] 1 HKCFAR 107.

6.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of each defendant before I can convict, the case of each defendant to be considered separately.

7.  I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

Robbery

8.  In summary Mr Ofoha testified that at 4 p.m. on the 19 April last year whilst working in his shop he received a phone call requesting a meeting to discuss a business proposal.  The number was unknown to   Mr Ofoha and although the person gave his name he did not know the caller or recognise his voice.  In cross-examination Mr Ofoha said that when he asked what business proposal was to be discussed he was told that they needed to sit down and talk and not discuss over the phone.

9.  Mr Ofoha said he was busy in his shop.  The caller persisted in the calls and eventually sometime around midnight Mr Ofoha agreed to meet the caller at an African restaurant in Kam Tin.  Mr Ofoha therefore drove to the restaurant taking about 20-30 minutes to arrive there.  On arrival at the restaurant Mr Ofoha did not see anybody and therefore rang the number which had called him.  Mr Ofoha said no one answered the call.

10.  When shown the call records Mr Ofoha believed the calls made at 23:58:01 and 00:00:36 by caller 61547444 was the caller who asked to discuss a business proposal.  The call made by Mr Ofoha to the same number at 00:47:35 was the call made at the restaurant when he could not find the caller.  Mr Ofoha said he did not know who answered the call but was told he was coming.  Having earlier said the call was not answered I clarified with Mr Ofoha whether the call was answered.  Mr Ofoha said he was not sure and thought the call was not answered.  Later in cross-examination Mr Ofoha said he called the number more than once as the call was not answered at first. 

11.  Because he could not find anybody Mr Ofoha returned to his car to leave.  When he was about to start his car the defendants appeared.  Mr Ofoha had known D1 as a fellow Nigerian for a number of years but was not close to D1 and recognised D2 as a person whom he had bought trousers from his shop.  In cross-examination Mr Ofoha said he also lent money to D2 and this was the main reason he knew him.    

12.  D2 drove a Camry and blocked Mr Ofoha from leaving.  Both Mr Ofoha and D2 alighted from their cars.  D2 said because Mr Ofoha had not answered his phone calls he tricked him into coming out by using someone else to say he wanted to discuss a business proposal.  At this time D1 was also present, having arrived also in a Camry with the registration number “SUGARMAN”.  Mr Ofoha saw D1 holding a flick knife.

13.  D2 said he was going to collect everything that was on Mr Ofoha.  Mr Ofoha thought D2 was joking but realising he was serious started to move back to his car.  At this stage D1 and D2 began to punch and kick Mr Ofoha.  Mr Ofoha was knocked unconscious.  When he regained consciousness he was still being kicked.  D1 and D2 then left in their cars. 

14.  Mr Ofoha looked for his phone which had been knocked out of his hand when he tried to call the police.  Mr Ofoha then called the police but had difficulty in communicating with the police because of the injury to his mouth and therefore found a fellow Nigerian to help call the police again.  Mr Ofoha also could not find his gold necklace which he wore all the time.

Was there a robbery?

15.  The medical report (exhibit P3) describes injury to face and body with the painkiller paracetamol being prescribed.  Only one specific injury was noted namely a laceration to the lip for which dressing was applied and bleeding stopped.  This bleeding was also seen by SPC 47743 (PW3) who responded to the 999 call.  In addition there was generalized tenderness over the face and body.  

16.  Clearly something did happen resulting in these injuries to Mr Ofoha.  The issue to determine is whether this was as a result of a robbery?  This depends on the credibility and reliability of Mr Ofoha.  In assessing the credibility and reliability of Mr Ofoha I have carefully considered all the evidence together with the submissions of Mr Shaw and Mr Tracy. 

17.  I was not impressed with the evidence of Mr Ofoha.  There are aspects of his evidence which clearly call into question the reliability of his evidence.  Two aspects in particular I find inherently improbable.

18.  First I find inherently improbable that someone would go out at midnight to meet someone he did not know to discuss a business proposal which the caller would not tell him about over the phone.  There was no reason why they could not meet the next day.  In reaching this finding I have carefully considered the explanation given by Mr Ofoha that if he did not go he would be regarded in the Nigerian community as a “Big Boy” too proud to help his fellow countrymen. Whatever the culture I find most unlikely someone would go out at midnight in the circumstances described by Mr Ofoha. 

19.  Secondly I find inherently improbable Mr Ofoha’s evidence that he showed text messages sent by D2 threatening him and pleading with him for forgiveness.  These text messages would be extremely damaging to a suspect and therefore if shown to the police I am quite sure the police would have taken all steps to preserve such evidence.  I accept the evidence of the police officers who testified that they were not shown any such text messages.    

20.  Further I find implausible that if such messages ever existed that Mr Ofoha would delete them.  Equally I find implausible Mr Ofoha’s explanation that because the Nigerian community repeatedly asked him to forgive the defendants he deleted the messages so that he could take out of his mind the image of the defendants having wronged him.   

21.  These two aspects are not the only areas of evidence which cause me concern. Others include the medical report which shows that whilst Mr Ofoha told the doctor he was robbed he said he was hit with a wooden stick.  No evidence was given of any stick being used.  I note the medical report also makes no mention of a knife.  Further the injuries sustained by Mr Ofoha arguably do not support an attack as described by Mr Ofoha whereby he was punched and kicked whilst on the ground such that he was rendered unconscious and was still being kicked when he regained consciousness.

22.  Mr Ofoha was unable to say from the telephone records which was the initial call made at about 4 p.m. when the request for a business meeting was first made. Further after Mr Ofoha made the call to 61547444 at 00:47:35 he clearly did not try to leave straight away.  The first 999 call is at 01:25:34 some 48 minutes later.  During this period   Mr Ofoha made two calls to the same number in Shenzen.  When asked by the court about these calls Mr Ofoha was unable to say who he called notwithstanding this is a number frequently called by Mr Ofoha.

23.  There is also a question mark over the linguistic skills of   Mr Ofoha.  Clearly he speaks good English as throughout his evidence he often gave answers in English.  His witness statements state he reads and writes both Nigerian (Igbo) and English.  When first cross-examined on his witness statements Mr Ofoha gave the impression he could read the statements.  The next day he said he could not read either English or Igbo and said to the court he had nothing to say as to why he did not tell the court he could not read the statements when cross-examined on them the day before. 

24.  In re-examination Mr Ofoha said he told the police he could read and write English and Nigerian.  When asked why he told the court earlier he could not read and write Igbo and English his explanation included that he did not have anything to say; if he read too much this was a strain on his eyes; he can read Igbo but he avoided reading so as not to strain his eyes; he did not read Igbo very well; he did not want to waste court time and he could only read a little bit of English.  I find these answers reflect badly on Mr Ofoha’s credibility.    

25.  As I stated earlier clearly something did happen resulting in the injuries to Mr Ofoha.  The fact he has the injuries raises a good deal of suspicion that the defendants, who accept they were there and had an altercation with Mr Ofoha, unlawfully inflicted those injuries.  However taking into account the matters I have set out I am left with a doubt that these injuries were caused in the course of a robbery as described by Mr Ofoha.  The benefit of the doubt is given to the defendants and they are acquitted of the charge of robbery.

26.  I would like to conclude by repeating the observations I made at the conclusion of the evidence of DPC 58983 (PW2) as to the way in which he recorded the three witness statements of Mr Ofoha.  As Mr Ofoha spoke in Nigerian this was translated first into English and then into Chinese for the benefit of DPC 58983, who made notes as he went along of what Mr Ofoha said.  After Mr Ofoha had finished DPC 58983 began to write out the statement in Chinese which was then translated into English and finally back into Nigerian. 

27.  In Lee Wing Kan v HKSAR FAMC 28/2007 the Court of Final Appeal said that the Court of Appeal rightly condemned the practice of the ICAC of summarising witness statements by way of a memory refreshing exercise.  This was said to give rise to the possible danger that witnesses may feel compelled to agree with the summary given to them and to adopt it in their testimony later whether or not the phraseology used in the summary had been strictly accurate.

28.  In my view the way DPC 58983 recorded the statements gives rise to the same danger that the witness will simply agree with the way the police officer has recorded the statement even if not strictly accurate.  Notwithstanding the witness is given an opportunity to read and check for any mistakes by retranslating in this way what the witness said there is also a danger something may be omitted which because the police have not written it down the witness may well think it is not so important to insist that it be written down.  

29.  I can see no good reason why the statement of a witness is not written in the language of the witness and then translated into English and Chinese as appropriate.  In this way not only are the dangers avoided but also allegations that the police officer has not recorded everything said by the witness.