HKSAR v. SAAD ELJADIDI

DCCC 1040/2017

[2018] HKDC 678

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1040 OF 2017

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REASONS FOR VERDICT

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Introduction

1.  Cutting through a back alley behind Chung King Mansion to get to Minden Row, two African women, Seth and Isaack, came across the defendant on their way; such encounter led up to the present case with the allegations that the defendant stole Madam Seth’s iPhone and thereafter assaulted her with intent to rob.

2.  The defendant, legally represented, denied two counts of offence, namely, charge 1 of theft (iPhone) and charge 2 of assault with intent to rob, the alleged victim in both offences were Madam Seth. All the persons involved in the incident, the two women and the defendant, are all Form 8 holders.

3.  The first part of the incident concerning the taking of iPhone was captured by the surveillance cameras installed in the alley, while the latter part relating to the alleged assault, which is not on any CCTV, occurred at Nathan Road and finally ended up inside a nearby pharmacy shop.

Issue

4.  The issue of the present case turns on the credibility of the two prosecution witnesses, Seth and Isaack. Even if the court questions the veracity of the woman’s story at the end of the day and rejects their evidence, could the court still rely on the CCTV footages to found a conviction at least for theft because the defendant was seen in it taking the woman’s phone from her back trousers pocket from behind, only to be snatched back by the woman almost immediately?

Evidence

5.  The woman’s story is quite straightforward. About 11:30 a.m., on 24 September 2017, Seth and Isaack walked along the alley, and came across the defendant, a complete stranger, said ‘hello’ to them. A conversation ensued in which the defendant asked Seth for money, when not getting any he kept asking Seth if she was Lisa, and asked her to return a number of things to him like shoes, handbag, perfumes etc., and he would give her back her immigration documents. The defendant even showed her a recognizance form with the name ‘Lisa’ on it and a picture of a woman. Seth told him repeatedly she was not Lisa. The women then turned back the direction they came but were followed by the defendant.

6.  There came a time the defendant took away Seth’s phone from her back trousers pocket; she immediately noticed it because she was wearing a pair of tight jeans, she then struggled with him to get back the phone, it fell onto the ground, she picked it up and walked away from the defendant.

7.  The defendant followed them onto Nathan Road where he starting attacking Seth. He tore apart her top and the bra as a result of which she was half naked. She ran into a nearby pharmacy shop, but the defendant chased into the shop to continue to assault her. The defendant even picked up things from the shop to throw at her.

8.  Someone called the police, and they came to the scene very quickly. Seth had suffered some injuries and was taken to hospital for treatment.

9.  No medical proof of her injuries was produced. Only photographs showing some scratch marks on her chest near the neck, but there are no clear injuries on her knees or feet.

10.  Isaack told a story similar to Seth’s, only that she was not targeted by the defendant.   

Analysis

11.  Having heard the evidence of the women, I cannot help but wonder if they were telling me the truth. They have embellished their stories with matters; such matters they mentioned in their testimonies in court but not in their statements to the police, and not just that they embellished in a similar fashion which causes the court’s concern – the defence call it a case of collusion.

12.  Both women testified in court the following matters the reference to them could not be found in their statements:-

(a)	-	The defendant had kept asking Seth if she was Lisa;
(b)	-	The defendant ripped Seth’s top as well as her bra;
(c)	-	Seth became half naked;
(d)	-	The defendant said to her several times that “I’ll kill you”.

13.  If the embellishment is simply a matter of exaggeration, the court may in some cases reduce the evidence to its proper dimensions – like the alleged victim said she had been assaulted for an hour long, but in fact the whole incident lasted no more than a couple of minutes. Here the problem, however, seems to me to be a question of possible collusion.

14.  Seth finished her evidence sometime in May, and in accommodating counsel’s dairy, the case was adjourned to a day in June for the other woman, Isaack, to take the stand. There is evidence to suggest that the two women were in each other’s pockets – Seth even called Isaack her sister – they came to court together on every occasion. In fact, the court had given specific warning to Seth not to discuss the evidence of this case with Isaack during trial.

15.  If the two women had not discussed evidence between them, how come they would have come out with exactly the same evidence relating to the four matters I mentioned in the preceding paragraph? Here in court they gave a story different from their statement, but more importantly they gave the same different story. I do not think in the circumstances one can simply put it down to sheer coincidence. I don’t buy it.

16.  When asked why there was no such reference in their statements, they both gave similar explanations – one of those was because their English was very limited, but in their English statements, which were exhibited as evidence, they both said that they can write and read English.  

17.  Both women elected to give evidence in Swahili in court but the evidence showed that the taking of their statements were done without the assistance of a Swahili interpreter or at least not clear about it. One of the reasons they also mentioned was that there might be some misunderstanding in the communication with the statement taker.

18.  Seth has been trying very hard to impress the court that she was a victim of a crime throughout her testimony – sometimes when the court addressed her as a witness, she would say she was a victim to remind the court of that.

19.  If the above had not dealt the coup de grace to the women’s hopes of getting the court to accept their evidence as truth, the testimony of a salesman from the pharmacy, Mr. Xu (originally listed as prosecution witness) - the only witness called by the defence, would have done so, notwithstanding the evidence of the arresting officer who said seeing the two struggling, chasing and pulling each other in the pharmacy when he arrived at the shop.       

20.  Both women testified that the assault on Seth started on Nathan Road which continued into the pharmacy, Seth went so far as to say that the defendant picked up things from the shop to throw at her, while Isaack said the defendant aggressively chased after Seth into the shop to attack her.

21.  Mr. Xu, however, told a completely different story – a woman came in first, then followed by a man; while they were in the shop, he stopped the man from getting near the woman, the two were just having arguments, there were no physical contacts between them.

22.  On the face of it, Mr. Xu appeared to be an independent witness, admittedly his evidence in some way is contradictory to that of the arresting officer, but without more, I do not see any reason to reject his evidence. Given the evidence as it is, I can only say that I don’t feel safe to rely on the evidence of two women –all the evidence before the court points to one possibility that they might have colluded with each other to embellish their stories with possible untrue matters in order to paint a real victim picture for Seth.

23.  Without the women’s evidence, the prosecution is left with only one piece of evidence against the defendant, i.e., the CCTV footages.

24.  One can see from the footages the following images:-

(a)	-	When they first encountered, the defendant stopped there waiting for the women to come towards him, Seth seemed to start talking quite a lot to the defendant;
(b)	-	The defendant staggered a little at times;
(c)	-	The defendant took away the iPhone from the back trousers pocket of Seth, she managed to get it back, then all walked to the direction of Nathan Road at a pace nothing out of the ordinary.
(d)	-	From the moment they met, the defendant following the women seemed eager to have conversations with them along the way.

25.  The common ground between the parties is that the women did not know the defendant or met him before. The defendant was seen on video taking in effect a stranger’s phone; if it was theft, it was theft, no matter how brief it was, and once it was done, and could not be undone. The cardinal question remains whether he had the necessary intention to permanently deprive.

26.  Judging from the behavior of the defendant seen in the CCTV, I suspect that he was high on something that morning, maybe intoxicated or on drugs, but one certainty is that he was not fully sober at the time.

27.  There is no denying the fact that he took the phone from the woman, but what happened following that seemed to cast doubt on the intention to steal, because after taking the phone, the defendant did not seem to run away with it.

28.  Remember the phone was put in the back pocket of a pair of tight jeans, as one can see from the images, they were very tight indeed.  If the defendant wanted to pick it like a pickpocket would do, he must do it surreptitiously in order not to alert the woman in any way, but the reality was the woman had noticed it.   The other way is to snatch it, then I would have expected him to run away but he didn’t. Again, given his bodily condition I suspect he was under at the time, could he make a dash with the phone?

29.  Taking everything into account, I cannot be sure if he had the intention to permanently deprive the owner of the phone when he took it– it was not beyond the bounds of possibility that the defendant took the phone for some other reasons, perhaps just to stop the woman walking away from him so that he could continue to talk to her. 

30.  Analysis of the evidence up to this stage could have disposed of the case altogether, but for good measure, I’d like to deal with a couple of matters that seemed to be incontrovertible, i.e., the change of clothes by Seth after the incident and the injuries seen on her in the photographs. 

31.  As can be seen from the photographs showing her injuries that she had in fact changed her top from a black one (seen worn by her in the alley) to a colour one (photos taken by the police a few hours after the incident). Seth said the top and the bra were torn by the defendant and certainly these were relevant evidence but strangely enough, no one saw fit to seize and produce the torn clothes as exhibits in this case. Or was it yet again a different story?

32.  Though she’d been to the hospital, prosecution produced some photographs instead of medical proof to show the injuries suffered by Seth. There are one to two clear red scratch marks on the chest near the neck, but the injuries described by Seth on the other parts such as the knee and the feet aren’t very clear.  

33.  Since the court does not rely on the evidence of the women, while on the other hand accepts the salesman’s, the fact that she had injuries on her would be neither here nor there. In other words, the court cannot be sure how those injuries were sustained.

Conclusion

34.  For the reasons given above, I am not satisfied that the prosecution has proved the charges to the required standard, i.e., beyond reasonable doubt.  That being the case, the defendant is duly acquitted of both charges.