HKSAR v. ABBAS SYED YASIR

DCCC 1136/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1136 OF 2012

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Reasons for Verdict

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1.  There were two defendants charged with robbery, contrary to section 10 of the Theft Ordinance, Cap. 210. Prosecution charged two defendants with robbing PW1 with another person unknown on 16 June 2012 at a hut in Pak Sha Tsuen, Yuen Long. These defendants were not arrested at the scene but two days later and not together. Both pleaded not guilty.

2.  After the first day of trial, the prosecution offered no evidence against the 2nd defendant and the charge against him was dismissed.  The only evidence against him was he was arrested, in other words, there was no evidence against him.  The trial proceeded against the 1st defendant.

3.  The issue in this case was whether there was sufficient evidence against the 1st defendant to identify him as a culprit, a robber.  Prosecution relied on circumstantial evidence against the 1st defendant.  There was no actual identification of the 1st defendant as a robber or an admission from the 1st defendant.

4.  PW1 was the victim and his evidence was that on 15 June 2012, two men of southeast Asian origin visited him at home with a view to renting a stone hut from him.  They were with PW1 for 15 to 20 minutes and said they would return the next day with money to pay for a rental.  They returned the next day and said a third male was on his way as well.  They arrived at about 3 pm.  They all waited for about half an hour together for this third male to arrive.  When he did arrive, he indicated to PW1 to switch on the air-conditioners.  When PW1 had his back turned, three men jumped him.  He was pushed onto a sofa facedown and there was an attempt to duct tape his mouth but PW1 bit the finger of that person thwarting that attempt.  PW1 said he bit down hard.  The struggle lasted for a few minutes.  The three men then fled after taking PW1’s mobile phone and snatching a necklace he was wearing.

5.  PW1 attended an identification parade four days later and could not identify the 1st defendant as one of the culprits.  In the record of the identification parade book, he is said to have said the culprit was not in the parade.  The 1st defendant was in the line-up.  In his evidence, PW1 clearly said he could not recall what the two men looked like nor give any details.  PW1’s shirt and trousers were seized by the police for forensic examination some hours after the robbery.  They were marked as Exhibit P1 and P2. 

6.  On 18 June, two days after the robbery, the 1st defendant was arrested by PW4 on patrol.  PW4 said he noticed the defendant because he looked nervous.  He saw that one of his fingers was bandaged.  The 1st defendant was sat on a sofa outside of a premise.  Those premises were subsequently searched and a female was found inside.  Another police officer, PW9, searched those premises with the 1st defendant’s permission.  PW9 had some information about an item of clothing sought by the police and seized a black polo shirt from a toilet.  The shirt was on top of a bucket full of clothes and marked as Exhibit P11.  Exhibit P6(1) and (2) are photographs of the 1st defendant and his bandaged finger taken after his arrest.  From the photograph one can see the defendant had long hair, it had dye run through it and had a distinctive goaty beard. 

7.  Prosecution rely on a forensic medical examination report, Exhibit P13.  On 19 June 2012, the 1st defendant was examined by a forensic pathologist.  That pathologist found five abrasions, injuries or bruises.  They were on his arm, elbow, hand, finger and knee.  The report refers to all five findings.  The relevant finding related to the wound on the 1st defendant’s finger.  Referring to that wound, I quote from paragraph 4 of the remarks of this witness. 

“A human bite is a possible form a crushing injury to the fingertip. In this case, no telltale impression mark from human teeth was found although a human bite can cause only bruises and/or abrasions without leaving any telltale impression mark by human teeth. Alternatively, a fall by riding a bike with the fingertip trapped between the handlebar and the ground could also have caused a crushing injury to the fingertip.”

8.  In cross-examination, this pathologist, PW8, offered up the two same alternatives as those set out in his report.  He agreed the wound could have been from a bit by a human or consistent with a fall from a bike.  He agreed the other four injuries are also consistent with a fall from a bike. 

9.  The prosecution also rely on a fibre comparison examination made by PW10, Dr Chan Hoi-yin.  He is a chemist attached the Forensic Science Division of the Hong Kong Government Laboratory.  He examined P1 and P2, PW1’s clothes, and P11, a shirt the prosecution alleged was worn by the 1st defendant at the time of the robbery.  The purpose of his examination was to determine if there was any evidence of contact in the form of textile fibres transferred between the clothing of the victim, PW1, and the polo shirt of a culprit.  His report is Exhibit P14.  The results and conclusions say that in view of his laboratory findings there was “very likely” a contact between the polo shirt, P11, and the clothing of the victim.  He explained he found fibres from P11 on P1 and P2 and he found fibres from P1 on P11.  The methodology he used was to compare control samples with fibres found on the corresponding garment.  Their microscopic appearances under various lighting conditions were compared.  The report reported what the methodology was but did not give examples or demonstrate in any way such findings.  PW10 when challenged about the lack of such detail, findings or results said he did not think it was necessary or required to include them in his report.

10.  Lastly, the prosecution rely on CCTV footage of three men with dark complexions running in the vicinity of the home of PW1. The CCTV footage comes from several cameras set up by a neighbour.  The CCTV footage was played in court, produced by PW2, the neighbour, and marked Exhibit P3. 

11.  Exhibit P12, 1 to 15, were still photographs taken from the CCTV footage of the three men running in the rain between 2.40 and 2.42 pm. 

12.  Exhibit P3(a) to (c) were still photographs taken from the CCTV footage of a taxi driven by PW3 on the material day.  The driver gave evidence that he drove a male of southeast Asian nationality to this area and then waited in the area for him after he had alighted. Subsequently the same male plus two other men got in his vehicle.  He says the three men got in at about 2.30 pm and he drove away. 

13.  P4 is a sketch drawn by PW2 of the position of his CCTV cameras and their angles as well as PW1’s home marked with an arrow across and the words “Mr Cheung”.  It can be seen at the top of the sketch. The three men seen running on the CCTV footage can be seen to be wearing a white shirt, a light grey or blue shirt and lastly a black shirt with red colour seen on the sleeves.  No witnesses identified anyone on the CCTV footage or the still photographs nor are faces obvious. 

14.  PW2 gave evidence that there were about 10 to 20-odd people of southeast Asian extract living around his warehouses and more specifically renting from PW1.  PW1 had subdivided pigeon huts into accommodation for rent. 

15.  The defendant did not give nor call any witnesses nor was he required to.  The failure to do so proves nothing one way or the other.  The prosecution has the duty to prove all elements of the robbery charge beyond reasonable doubt.  Where the chain of evidence for certain exhibits was concerned, the defence put the prosecution to strict proof.  Prosecution must prove the defendant stole PW1’s necklace and mobile phone and immediately before or at the time of doing so he used force on PW1 or put PW1 in fear of being then and there subjected to force.  These are the elements of the offence.  If PW1 were proved to be one of the three men described by PW1 as having pushed him onto the sofa and tried to tape his mouth shut before taking his phone and necklace, then I would be sure the 1st defendant was a robber.  The issue is whether or not he was one of the three men.

16.  As there is no direct evidence of identity, is there enough circumstantial evidence that would, when considered together, draw an irrefutable inference the 1st defendant was one of the robbers.  Prosecution present the two expert opinions and the CCTV footage as evidence against the 1st defendant.  Prosecution’s case is that cumulatively they are sufficient to draw such an inference. 

17.  On the other hand, the defence submit there is insufficient evidence to draw such an inference.  Defence say the CCTV footage is not evidence against the 1st defendant, he is not identified as being in the CCTV footage. 

18.  A shirt that looks like a shirt one of the three running men was wearing was seized from a premise where the police found the 1st defendant sat outside of.  There was, as I said, another person in the room.  There is no evidence the shirt actually belonged to the 1st defendant. After the shirt was analysed, it was concluded that it was “very likely” to have been worn by a robber, yet this shirt has not been directly linked to the 1st defendant. 

19.  The other link to the robbery the prosecution rely on is the injury to the 1st defendant’s finger.  It was possibly inflicted by a human bite and it could equally have been an injury inflicted by a fall from a bicycle.  That is as far as the evidence can be taken.

20.  Both pieces of evidence are not definitive or sure in their conclusions.  “Could be” and “very likely” is the language used and used carefully not lightly.  In addition, the expert report of PW10, P14, is bare.  I would not go as far as to say the report contains bare assertions only but I would have expected more material adduced as far as the examination process is concerned to best illustrate why PW10 made the findings he did. 

21.  Defence counsel produce several authorities to illustrate that this is required from experts and not fulfilled by PW10.  It was submitted that proper necessary scientific criteria must be produced to allow a court to test the accuracy of the conclusions of the expert.  The Judge ought to have sufficient material before the court to enable the Judge to see why certain findings were made as well as to form his or her own judgment.  I agree with this submission.

22.  I cannot place much weight on Exhibit P14 nor find it direct evidence against the 1st defendant.  Prosecution failed to prove P11, the shirt, belonged to the 1st defendant or was worn on the material day by the 1st defendant.  The report itself is lacking the necessary scientific criteria and analysis required.  Lastly, the conclusion of “very likely” is not sufficient to prove guilt or draw an irresistible inference against the 1st defendant or anyone.

23.  The medical report of the 1st defendant’s finger wounds similarly is not conclusive evidence.  It does not show the 1st defendant was bitten by a human therefore possibly linking him to the robbery.

24.  The CCTV footage was of little assistance. 

25.  The evidence considered together does create a suspicion against the 1st defendant but when one considers an inference must be compelling, one and the only one that no reasonable man could fail to draw from the direct facts proved, prosecution fails.

26.  There are not enough direct facts proved that when considered together prove the defendant was a culprit.  Despite my suspicions, prosecution have not been able to prove beyond reasonable doubt from the evidence submitted that the defendant was a robber and robbed PW1 with others. Accordingly the defendant is acquitted.