HKSAR v. MUHAMMAD SAQIB

CACC 232/2015

[2018] HKCA 367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 232 OF 2015

(ON APPEAL FROM HCCC 278 OF 2014 & HCCC 150/2015)

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D E C I S I O N

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1.  The applicantapplied to me for an appeal aid certificate so that he can have legal representation at the hearing of his appeal. The applicant was charged with four others with the offence of forcible detention of a person with intent to procure a ransom for his liberation, contrary to section 42 of the Offences Against the Person Ordinance, Cap 212 (“kidnapping”) and with two others with the offence of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210. He and his co-accuseds were all convicted of the kidnapping count and all acquitted of the robbery account. On the kidnapping count the applicant was sentenced to 19 years’ imprisonment.

2.  At the hearing of his application on 21 May 2018 I reserved my decision which I said I would hand down at a later date.

3.  As the applicant is not currently legally represented he has not filed any Perfected Grounds of Appeal.  His complaints against his conviction and sentence are as set out in letters of 18 August 2017, 24 November 2017 and 4 May 2018 that he wrote to the court, an affirmation affirmed on 19 January 2018 and as supplemented by his oral submissions to me at the hearing of his application.  His complaints are as follows:

(1)   the judge’s directions to the jury on PW2’s identification evidence were inadequate as she did not properly bring home to the jury the poor eyesight of PW2;

(2) and (2A) the applicanthas additional evidence in support of an alibi.  This evidence places him at around midnight on 25 October 2013 at a police checkpoint at Lo Tsz Tin bus stop near Tai Mei Tuk.  At this time he was stopped by police who recorded his identity details.  The additional evidence is the copy of the police officer’s notebook in which his identity details were recorded;

(3)   the testimony of PW2 was at numerous points not translated by the court interpreter from Punjabi to English;

(4)   on a number of occasions in the course of his evidence PW2 consulted a document he had written in Punjabi.  Because it was written in Punjabi the defence were not able to understand it.  The failure of the prosecution to translate it led to unfairness; and

(5)   the judge’s directions in respect of the caution with which the jury should approach the evidence of D5 were inadequate.

Discussion

4.  I have considered all of the complaints and do not find that any of them could form the basis of a reasonably arguable ground of appeal:

(1)   The judge did remind the jury of the need for caution in respect of the identification evidence of PW2 and although she did not specifically highlight PW2’s eyesight issues I am nevertheless satisfied that, in the particular circumstances of this case, she fairly left to them their assessment of the weight they should give to his identification of the applicant.

(2) and (2A)  The fact that the applicant was at the location he said, at the time he claimed, does not provide him with an alibi that contradicts the evidence of PW2.

(3)   Although the applicant identified many failures he asserts occurred in the translation of PW2’s evidence, none of them were of any significance.  Two of the counsel involved in the case, Mr Sadhwani for D3 and Ms Panesar for the applicant, appear to have been able to speak the language of PW2 and were able to alert the court when there had been any error in the interpretation or any failure to interpret.  Most of the occasions identified by the applicant are where the transcript notes the following against PW2’s response to a question:

“(Answer not interpreted)”

   This appears to usually have been because of a failure by PW2 to understand the question or for some other, similarly, innocuous reason.

(4)   The document used by PW2 in the course of his testimony became known to the trial judge and the parties and a copy of it was provided to the applicant’s counsel.  If the applicant’s counsel wished time to study it then an application could have been made to enable this to be done.  How the applicant’s counsel should have responded to the knowledge that PW2 was making use of this document was entirely a matter for counsel in the exercise of her professional judgment.

(5)   The judge’s directions in respect of the caution with which the jury should approach the evidence of D5 were adequate.

Conclusion

5.  For these reasons I refuse the application.