HKSAR v. DOST IMRAN

CACC 106/2021 [2023] HKCA 780

On appeal from [2021] HKDC 591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 106 OF 2021

(ON APPEAL FROM DCCC NO 492 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 30 April 2021, the applicant was convicted after trial before District Court Judge Casewell (“the judge”)  of one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210. He was sentenced to 5 years and 3 months’ imprisonment.

2.  On 14 May 2021, the applicant filed a notice of application for leave to appeal against conviction. On 25 May 2022, the leave application was refused by a Single Judge[1]. On 1 June 2022, the applicant filed a notice of renewal of application.  In mid-August 2022, the applicant filed a notice of motion and an affirmation seeking leave to adduce fresh evidence in his appeal under s.83V of the Criminal Procedure Ordinance, Cap 221. 

3.  The applicant appeared in person at the hearing of his renewed application before us, having had legal assistance refused by the Legal Aid Department and the Bar Free Legal Service.[2]

The prosecution case

4.  The prosecution case relied principally on the evidence of Buta Singh (“PW1”), a 20-year old Hong Kong resident of Indian origin.  Between 5:30 pm and 8:00 pm on 26 December 2019, which was a public holiday, PW1 was drinking together with some fellow South East Asians, including the applicant, near Exit B2 of Mong Kok MTR station. PW1 said this was the first occasion he had met the applicant.  However, this was disputed by the applicant, who alleged that they had previously known each other. 

5.  At about 8:00 pm, the applicant, PW1 and some other men set off for Tai Mo Shan Country Park by car to continue drinking.  Later at this location, when PW1 said he wanted to leave, the applicant and another man suddenly took out cutters, threatened PW1 and demanded that he hand over his bag.  PW1 complied with their demand and handed over to them his bag and its contents, consisting of two mobile telephones, one camera, one watch, one wallet, cash of HK$500, one pair of sunglasses and some personal documents.  He was assaulted by them and sustained injuries, which were shown in photographs produced by way of Admitted Facts[3]. The three men then left the scene by car, whereas PW1 walked down to Tsuen Wan police station to report the robbery.  In the small hours of 27 December 2019, PW1 made a police witness statement, in which he gave what the judge termed a “generic description” of the robbers.  The defence submitted that PW1’s description of the robbers was inconsistent with his subsequent statements.

6.  PW1 testified that in the course of his conversation with the applicant that evening, the applicant viewed photographs on his telephone and said he knew one of the men depicted in them, who was called “Roop”.  After the robbery, this led PW1 to communicate with Roop to try and secure his help in getting back some of his stolen property.  Through Roop, PW1 recovered some of the stolen items through an intermediary the same evening.  It was complained by the defence that PW1 never mentioned Roop in his statements and only told police about the recovery of the stolen items in his statements on 2 May 2020.

7.  On 1 May 2020, PW1 saw the applicant again at Mong Kok MTR station, stopped him and held him there until the police arrived.  The applicant was arrested and remained silent under caution.  PW1 gave another police statement on 2 May 2020, which contained a further description of the robbers. 

The defence case

8.  The applicant elected to give evidence and called his wife, Daini, and his cousin, Khan Ajab, as defence witnesses.  The applicant testified that he and PW1 had been friends since 2018 and often socialised together.  He admitted that on 26 December 2019, he had met with PW1 at a garden near exit B2 of Mong Kok MTR station and had been drinking there.  However, he left at about 6:30 pm and returned home to be with his wife and child.  PW1 owed him some money, which he refused to repay.  He lent PW1 HK$5,000 in 2019 and about HK$2,000 in January 2020.  On 1 May 2000, PW1 asked him for a further $500.  The applicant refused and was assaulted by PW1.  They both called the police.  The police arrived, and the applicant was arrested.

9.  The applicant’s wife testified that the applicant returned home between 6:00 pm and 7:00 pm on 26 December 2019 and did not go out again that evening.  She knew PW1 had asked the applicant for money.

10.  The applicant’s cousin testified that PW1 and the applicant were friends and often socialised together; and that he was present when the applicant lent HK$5,000 to PW1.

Reasons for verdict

11.  The judge accepted the evidence of PW1 but rejected the evidence of the applicant, his wife and his cousin[4]. 

12.  In accepting PW1’s evidence, the judge considered the attack on PW1’s credibility[5] but found that: (i)  PW1’s initial generic description of the robbers was “not necessarily inconsistent” with his subsequent more detailed description[6]; (ii)  PW1 was a civilian witness, and the fact that PW1 had not told the police earlier about Roop or the return of some of the proceeds of the crime did not undermine PW1’s credibility[7]; and (iii)  PW1’s identification of the applicant was more in the nature of a recognition since they had spent a long time together that evening, which was not disputed by the applicant[8].

13.  In rejecting the evidence of the applicant, his wife and his cousin, the judge found no good reason for the applicant to have loaned money to PW1 and that the defence case was “a contrived story”[9]. He described the evidence of the wife and cousin as “basically a fabrication to assist their relative”[10]. The judge found[11]:

“The defendant is a Form 8 asylum seeker reliant on money from the government and occasionally (it)  would appear, money from home. He simply would not have the means, the desire to extend loans to a working Hong Kong resident. It simply was not a rational proposition that the defendant would have extended any loans to PW1.”

The grounds of appeal 

14.  In renewing his leave application to appeal against conviction, the applicant has filed a number of handwritten letters.[12] The matters of complaint that can be gleaned from the applicant’s letters are essentially the same as the grounds that the Single Judge refused:  

(1)  The judge failed to consider the inherent inconsistencies in the evidence of PW1.  In particular, PW1’s descriptions of the robbers did not correspond to the applicant’s profile; moreover, PW1 only identified the applicant 5 months after the offence (“Ground 1”). 

(2)  The prosecution failed to prove that the robbery had taken take place at the time and location alleged, and there was no independent evidence, such as CCTV, to link the applicant with the offence (“Ground 2”).

(3)  PW1 was an unreliable witness; for example, he failed to report to the police the recovery of the stolen items and the existence of a mutual friend called Roop (“Ground 3”).

(4)  The judge did not adequately consider the defence case, including the evidence of the applicant’s wife and cousin (“Ground 4”).

(5)  The applicant repeated his assertion that he had known PW1 before the date of the offence (“Ground 5”).

15.  In his oral submissions, the applicant made two further points in support of his renewed application.  First, he questions how it was possible for PW1 to walk from Tai Mo Shan to Tsuen Wan Police Station, particularly as PW1 had been drinking and would have been drunk.  Secondly, it was implausible that a robbery had been committed when the stolen property had been returned.

16.  It is generally complained that there was no sufficient evidence of either a robbery or a theft. The whole incident was a fabrication by PW1.

The respondent’s submissions

17.  Ms Human Lam, for the respondent, submits that regarding Grounds 1 and 3, the judge had identified, considered and thoroughly dealt with the alleged inconsistencies and unreliability of PW1’s evidence, and that these grounds merely repeated by the applicant[13].

18.  As for Grounds 4 and 5, the judge had the advantage of receiving the evidence first-hand and gave a detailed analysis of the defence case as presented in evidence.  She submits that the judge carefully and properly evaluated the evidence of both sides and was entitled to accept PW1’s evidence and reject the defence evidence.

19.  As for Ground 2, it was not necessary to prove the time and place of the incident; while the absence of any CCTV evidence could not and did not in any way affect the safety of the conviction.

20.  As for the two additional matters raised in oral submission by the applicant, Ms Lam submits that these were factual matters that the judge addressed in his reasons for verdict.

21.  Finally, the respondent notes that the judge was satisfied to the requisite standard that the robbery by the applicant had taken place and rejected the contention that it was a fabrication.

The application to adduce fresh evidence

22.  In his renewed application, the applicant seeks leave to adduce fresh evidence from Roop Singh and Khan Ajab (the applicant’s cousin).  Significantly, he does not provide a signed statement from the two persons he seeks to give evidence before us.

23.  The applicant claimed that Roop had visited him in prison and indicated he would testify on his behalf [14].  In his affirmation[15], the applicant stated that:

(a)  Roop intends to give evidence that he did not help PW1 to retrieve the stolen properties, and that the applicant and PW1 were acquaintances.  Both of these matters are contrary to the PW1’s evidence. 

(b)  The significance of Roop’s evidence is that it shows PW1 had fabricated the whole story. 

(c)  As to the reason why Roop was not called at trial, the applicant claimed that Roop was a prosecution witness and his counsel tried to call Roop and question him on the issues but the judge ignored the application.  

24.  The applicant also stated in his affirmation that Khan Ajab would serve as an alibi witness[16]. He requests that Khan Ajab testifies before us to repeat the evidence he gave before the trial judge, which was rejected as a fabrication[17]. 

25.  The respondent opposes the application on two grounds.  First, the name “Roop Singh” was never put on the prosecution’s witness list as claimed by the applicant[18].  Secondly, the conditions under section 83V of the Criminal Procedure Ordinance, Cap 221 have not been complied with.

Discussion

26.  This case very much depended on an assessment of the evidence presented by the prosecution through the victim of the robbery and the defence through the applicant and his wife and his cousin.

27.  PW1 testified that the robbery occurred when he and others, including the applicant, were drinking and socialising at a country park in Tai Mo Shan on the evening of 26 December 2019.  

28.  The applicant denied the allegation.  He said that although he was with PW1 earlier that evening, he had gone home and was not with him when the robbery occurred.  He claimed that PW1 had fabricated the allegation against him because he owed him money and refused to pay it.  In addition to giving evidence, the applicant called his wife and cousin to support his claim that he was at home at the time of the offence and that he knew PW1 and had lent him money.  The applicant’s wife testified that the applicant returned home on the evening of 26 December 2019 between 6:00 pm and 7:00 pm and did not go out again.  She said she had seen PW1 before and knew that he had asked the applicant for money.  The applicant’s cousin said he had known PW1 for three years and had met him about three times a month with the applicant.  He said he was present when PW1 borrowed $5000 from the applicant.

29.  The issues raised in Grounds 1 and 3 concerning the inconsistencies and unreliability of PW1 were canvassed at trial and dealt with by the judge in his reasons for verdict.  The defence challenge of PW1 concerned the identification of the assailants.  It was submitted that he had given inconsistent descriptions of the robbers in his three statements to the police and that when he had identified the applicant as one of the assailants, some four months had passed from the date of the robbery.  The judge, in his reasons, discussed these issues in detail, and, after an analysis of the evidence found PW1 to be a reliable witness and that he had been consistent in his descriptions of the robbers and his identification of the applicant as one of the robbers. 

30.  Ground 2 is without merit.  The complaint that there was no independent evidence, such as CCTV footage linking the applicant to the offence, is to ignore the nature of the case and the circumstances in which it occurred, in a country park late at night. 

31.  The judge also found that the applicant’s portrayal of him being a friend and acquaintance of PW1 to be untrue and a contrivance.  He rejected the applicant’s claim that PW1 borrowed money from him, given that PW1 was a working Hong Kong resident and there was no documentation of any loan between them.  He noted that the applicant was a Form 8 recognizance holder, who was prohibited from working in Hong Kong, and who would not have had the means or desire to extend loans to a working Hong Kong resident.  The judge disbelieved the defence case and explained his reasons why he rejected the evidence of the applicant, his wife and his cousin.  There is no substance to the complaint in Grounds 4 and 5 that the judge did not adequately consider the defence case.  He addressed it in some detail but found that the defence witnesses had concocted a story in defending the charge against the applicant. 

32.  Whilst PW1 did not mention Roop in his witness statements, he did tell the police in his last two statements in May 2020 that he had recovered some of the stolen properties through an intermediary in the evening of 27 December 2019.  The applicant’s complaint that PW1 had not mentioned Roop in his first statement, which he made after he had been robbed and reported the matter to the police on the early hours of 27 December 2019, is fatuous and misleading because it was later in the evening of 27 December 2019 that he had received some of the stolen property through an intermediary. PW1 did mention this matter in his later statement in May 2020[19].  In any event, the judge addressed this issue in his reasons for verdict, finding that although PW1 had not told the police about Roop or the return of some of his property, it did not undermine his credibility[20].

33.  The judge dealt with the two additional points raised by the applicant in his reasons for verdict.  As for the first point, the judge noted that PW1 had not been affected by alcohol and had taken some 1 ½ hours to 2 hours before he was able to reach the police station that evening.[21]  The applicant submits that there was no road from the country park to the police station.  However, PW1 had been driven to the location by car which would indicate there was a road and he clearly had to walk to his destination because he had been robbed and abandoned in the country park.  As for the second point, the judge accepted the evidence of PW1 that he had recovered some of the stolen items through an intermediary.[22]

34.  In our assessment of the fresh evidence, we are particularly concerned about the credibility of the witnesses and find the explanation for the failure to adduce this evidence at trial, particularly the purported evidence of Roop, to be unsatisfactory.  As we have already noted, the evidence of Khan Ajab had been given at trial but rejected by the judge.

35.  This is a classic case where the tribunal of fact had to assess and evaluate the evidence given by the opposing parties.  In a case where there is conflicting testimony, a tribunal which saw and heard the witnesses is in a unique position to assess and determine the credibility of the evidence.  It is generally accepted that the credibility of witnesses is a matter for the judge and an appellate court would only interfere with such an assessment of a witness where it was plainly wrong or unreasonable.

36.  A crucial plank of the defence case was that PW1 had borrowed money from the applicant and concocted the robbery to avoid paying the applicant the money he owed him.  The judge upon finding that this alleged loan was a contrivance, the defence case collapsed.  He then considered the evidence that he had accepted and was satisfied to the requisite standard that the applicant had unmistakably identified the applicant as one of the assailants and found him guilty of the offence. 

Conclusion

37.  As we have already noted, the applicant by this renewal application, has merely sought to relitigate the issues that were canvassed before the trial judge and properly determined by him.  It was for the judge, who had the advantage of seeing and hearing the witnesses, to evaluate the evidence to make findings of fact and credibility.  The issues raised at trial were considered by the judge and he made appropriate findings that cannot be said to be unreasonable or plainly wrong.  For the reasons we have given, we refuse the applicant’s renewal application and dismiss his appeal against conviction.