HKSAR v. KHAN FARAZ AHMED AND ANOTHER

DCCC 200/2020

[2020] HKDC 1213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 200 OF 2020

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REASONS FOR VERDICT

          D1 and D2 are jointly charged with an offence of "Robbery" (Charge 1). D1 alone also faces a charge of "Robbery" (Charge 2).

2.  D1 pleaded guilty to both charges.  D2 pleaded not guilty to Charge 1.  This trial is about D2 in respect of Charge 1 only.

The Prosecution Case

General Issue

3.  Around midnight between 13 and 14 July 2019, Madam Ye (then aged 27 and 9 months pregnant) was on her way home.

4.  Upon reaching the area outside Ma Tau Kok Road Public Toilet & Bathhouse situated at No.180 Kowloon City Road, she heard some sound of hasty footsteps from behind.  As she was about to turn around, someone covered her head with a red-check shirt.  Her handbag was then snatched away from her.  The contents of her handbag are particularized in Charge 1.

5.  The red-check shirt was soon removed from Madam Ye's head.  She saw 2 males running towards San Shan Road.  She noticed one of them holding a red-check shirt in his left hand and her handbag in his right hand; the other male was holding nothing.

6.  Madam Ye shouted for help and chased after the 2 males.  In the course of her pursuit, she fell on the ground and sustained abrasions on her knees and right palm. The 2 males then went out of her sight.

7.  Madam Ye's handbag was later found near a public toilet at To Kwa Wan Recreation Ground. When she was shown her handbag, she found all the cash ($4,000), 2 ATM cards, a Huawei mobile phone and 1 Octopus card missing.  Her identity documents, credit cards and other miscellaneous items remained inside.

8.  Parts of the incident, except the actual robbery, were captured by CCTV footage.

9.  D2 was arrested for the offence in Charge 1 on 19 July 2019.

Special Issue

10.  The only evidence against D2 is his admissions.  The prosecution seeks to rely on his verbal response upon arrest, the post-recorded notebook entry (Exhibit PP1) and his 1^st video recorded interview (Exhibit PP2).

11.  D2's counsel Mr. Richmond objected to the production of D2's verbal response, Exhibits PP1 and PP2.  He submitted his written grounds of objection.  I need not repeat them here.

12.  The prosecution called DPC 9014, DSgt 51918, DPC 5728 and DSPC 54573 (PWs 1 to 4 respectively) to give evidence.  They accounted for the arrest of D2 and all the events leading up to his 1^st video recorded interview.  They all denied the allegations of improper conduct put to them by Mr. Richmond.

The Defence Case

Special Issue

13. D2 elected to give evidence and called his elder sister Madam Nadia[1] as defence witness.

14. D2 basically repeated the improper conduct of the respective police officers as stated in the Grounds of Objection prepared by Mr. Richmond. Madam Nadia accounted for the events leading up to the arrest of D2. I will deal with their evidence in the subsequent paragraphs.

General Issue

15. The defendant elected not to give evidence or call any witness. This is his right; I drew no adverse inference against him in this regard. His evidence given in the special issue does not, however, form part of the defence case in the general issue.

Assessment and Analysis of Evidence

Special Issue

16. The burden of proof is on the prosecution to prove the voluntariness of D2 in relation to his verbal response, Exhibits PP1 and PP2 beyond reasonable doubt.

17. D2 has a clear record. I have directed myself on his good character accordingly.

18. I have carefully assessed the evidence of all witnesses (including D2 and his sister) and observed their demeanour in the witness box. I find PWs 1 to 4 honest and reliable. Their evidence is consistent with each other and sensible. When they said they did not know anything about Faraz (D1) at the pre-operation briefing held in the afternoon on 19 July 2019, I believe them. I accept their evidence in full.

19. D2 is now 20 years old. He was born in Hong Kong and completed F.6. He can speak Punti but cannot read Chinese. He can speak and read English; the teaching language at his school was English and he took exams in English. His native tongue is Urdu, but he cannot read Urdu.

20. D2 claimed that he was standing at the street with his sister and mother to wait for the police officers who were looking for him. When they arrived, they handcuffed D2 and put him in their car without verifying his identity or checking his ID card. D2 said he was not cautioned and did not make any reply at the scene.

21. I find it odd that PW1 would arrest D2 without first verifying his identity or checking his ID card. D2 was waiting for them at the street. There were no signs of him fleeing or causing danger to anyone or himself. It did not make sense to handcuff him right the way and put him in the car without even confirming his name. Also, why would the police officers treat him roughly without knowing if he was cooperative or not?

22. Both PW1 and D2 said they communicated in Punti. On the other hand, Nadia said the police officers spoke to D2 in English. Clearly, Nadia was mistaken. I have doubts about the reliability of her evidence.

23. Under caution, D2's verbal response in Punti was "Ah Sir, I did not take part in the robbery. I was only responsible for acting as a lookout[2]." This is a very natural response from a layman because many people tend to think that acting as a lookout is not part of a robbery; the lookout is not a robber. I do not see any reason why the police officers had to go through so much trouble to obtain such a "lame" confession from D2. If improper means were used, why not obtain a fuller confession?

24. The post-recorded notebook entry (Exhibit PP1) was done in the presence of a Punti-English interpreter and an Urdu-English interpreter. D2 claimed that the entry was not read out to him and he was not allowed to read it himself. I find it hard to believe, especially when 2 interpreters were present. D2 understands spoken Punti, English and Urdu and is able to read English. I am sure he was given ample opportunity to understand the notebook entry. I see no impropriety in Exhibit PP1.

25. I have viewed the video recorded interview (Exhibit PP2). Again, the same 2 interpreters were present throughout. The replies given by D2 made sense and his demeanour did not show a hint of involuntariness. From a layman's point of view, D2 was trying his best to disassociate himself with the robbery in the interview. In the witness box, he claimed that he made up the details to fulfil the one-line plot which PW1 told him. I find it difficult to believe. He certainly did not need to mention names like Ali and Abdulah or receiving $500 from Faraz.

26. Based on the reasons stated above, I am satisfied beyond reasonable doubt that D2's verbal reply, the post-recorded notebook entry and his video recorded interview were made voluntarily. I see no reasons for exercising my discretion to exclude any of them. I rule that his verbal reply, Exhibit PP1, Exhibit PP2 and its transcript (Exhibits PP3 and PP3A) are all admissible. They will form part of the prosecution evidence.

General Issue

27. The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt.

28. I have directed myself on D2's good character again.

29. The defence has practically admitted the entire prosecution case. Mr. Richmond submitted that D2's so-called confessions in his video recorded interview are insufficient to connect him with the robbery of Madam Ye. Furthermore, even if the court accepts in full what D2 had said, they are insufficient to prove that D2 had in fact agreed to take part in the robbery suggested by Faraz.

30. At the time of arrest and at the beginning of the video recorded interview, PW1 has stated clearly the particulars of the robbery (including date, time, location, the number of culprits, name of the victim and the properties stolen). There is no ambiguity as to which robbery PW1 was talking about. D2 obviously understood it as well. His failure to mention the hooding of the victim's head or the shirt used is immaterial.

31. Regarding the "agreement" to join/help Faraz, the following passages from Exhibit P3 provide the answer :-

Counter	Speaker	Contents
517 519	PW1	Em – as you mentioned before, "he ran, and I ran after him." Em – Why did you run? Is that mean you would had already snatched items from someone?
522	D2	Er – I even did not touch that girl, so it's out of question of snatching, such thing is out of question.
525 527	PW1	As you mentioned before, you were responsible for the lookout, – is that mean Faraz had already snatched items from someone?
530 534	D2	Er – I did not notice that much, but er- he just snatched very quickly and ran away. Er – yes, he snatched rapidly, and then er- I did not have any idea what was going on.
537	PW1	Em – then did you see Faraz snatching items from someone?
540	D2	I – I saw, but as I mentioned before, that it was not very clear, I did not see very clearly.
543	PW1	Then em – can you tell how did Faraz rob that girl?
546	D2	Er – he ran – running, and then I guess he snatched rapidly, and then came back rapidly.
549	PW1	Em – is that mean Faraz were with you, and then he started running to the girl, and then snatched something from the girl, and then very quickly, and then come back to you very quickly?
552	D2	Yes.

32. It is obvious that D2 knew and saw what Faraz was doing. Yet, he did not withdraw (overtly or impliedly) himself from his association with Faraz. The time span for acting as a lookout might have been short, but D2 did what he was asked and ran away together with Faraz.

33. I attach full weight to D2's verbal reply, the notebook entry and what he said in his video recorded interview. I have not a doubt that he took part in the robbery of Madam Ye in the ways described by him. The robbery was a simple and quick one. It takes no more than a few sentences to describe and to confess to it.

34. Based on the reasons stated above, I am satisfied that the prosecution has proved beyond reasonable doubt all elements of the offence. I find D2 guilty of Charge 1.