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DCCC 89/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL ACTION NO. 89 OF 2009
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Coram : Her Honour Judge M. Yuen in Court
Date : 14 May 2009
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Present:
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Mr. Andrew RAFFELL, Counsel on fiat, of the Department of Justice, for HKSAR
Ms. SUJANANI Bina Dayaram, instructed by Messrs Lam, Lee & Lai, assigned by DLA for the defendant
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Offence: Attempted robbery (企圖搶劫罪)
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Reasons for Verdict and Sentence
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Reasons for Verdict
1. The defendant faced 1 charge of attempted robbery.
Prosecution’s Case
2. It was the prosecution’s case that the defendant had tried to snatch the mobile phone of the PW1. In order to do so the defendant used force on PW1 by punching PW1 on his neck.
3. The defendant on the other hand offered a different account of the events. The defendant said he did not use force on PW1 nor did he seek to snatch PW1’s mobile phone. According to the defendant, PW1 was simply trying to get him connected on PW1’s mobile phone to reach their common friend Ameen Khawaja to enable the defendant to chase Ameen Khawaja for the repayment of a loan owed to the defendant.
The Events
4. The events happened on the evening of 2 December 2008 amongst the Pakistani community.
5. Rauf Abdul (PW1) came to Hong Kong a number of times since 2001 on visitor permits. He said he lived on the financial assistance of his friends and remittance from his family in Pakistan. The defence suggested PW1 came to work illegally in Hong Kong.
6. On the evening in question at about 9.45pm PW1 was standing on a road crossing patch next to the rest area at the central divider of Nam Cheong Street in Kowloon. PW1 was speaking over his mobile phone.
7. The accounts of the events differed between PW1 and the defendant from this point onwards.
8. PW1 said he was still speaking on the phone when he noticed the defendant from a distance swearing. The defendant had a can of beer in his hand and was approaching PW1. When PW1 finished with his phone call PW1 was about to put his mobile phone into his pocket. The defendant came towards him and twisted his hand. The defendant further told PW1 to hand over his mobile phone to the defendant. When PW1 refused, the defendant threw away the beer can and punched PW1 once on PW1’s neck. The two entered into a struggle. Eventually PW1 broke himself free from the defendant. PW1 said in the course of the struggle, his hand was scratched by the defendant. PW1 dialed 999 to report the matter to the police.
9. PW1 further said he saw 2 uniform police officers patrolling at the opposite carriageway. He ran to the police officers for assistance. The uniformed officers did not help him but simply told him to dial ‘999’. PW1 later saw some other uniform police officers arrived. PW1 told the arriving police officers he was the complainant and that the defendant has assaulted him and wanted to snatch away his mobile phone.
10. The version the defendant gave was entirely different. He said he and PW1 had known each other for over a year because PW1 shared an apartment with the defendant’s cousin in 2007. The defendant has told PW1 that Ameen Khawaja owed the defendant money. The defendant had an argument with PW1 3 days before 2 December 2008 about the defendant wanting PW1’s assistance to chase Ameen Khawaja for the money. On the evening in question the defendant was asking PW1 again for his assistance to reach Ameen Khawaja on phone for the repayment of the defendant’s loan. The defendant said he never laid his hands on PW1. He did not know why PW1 framed him up for the offence.
11. PC 5298 (PW2) was the unformed police officer who arrested the defendant on the evening in question. He received a call from the police console at about 10.24pm that evening about a robbery report at Cheung Sha Wan Road. When PW2 got to the location he saw PW1 standing next to the defendant at the pedestrian crossing safety island in the middle of Nam Cheong Street. PW2 did not recall seeing the defendant or PW1 doing anything in particular. PW1 told PW2 that the defendant has assaulted him on his neck. Defendant gave no reply to PW1’s assault allegation. The defendant later denied robbing PW1.
12. PW1 denied knowing the defendant, while the defendant and his witnesses testified that PW1 was staying with the defendant’s cousin in 2007. The defendant called upon 2 of his fellow countrymen Sajjad (DW1), Ameen Khawaja (DW2) and his cousin Muhammad Azeem (DW3) to affirm PW1 and the defendant were acquainted with each other. DW2 testified he owed the defendant money. DW1 further testified he witnessed the defendant had an argument with PW1 a few days before this incident.
Verdict
13. The whole case hinges upon an issue of credibility. My duty here is not to weigh the versions between those of the prosecutions and the defence and select which one to accept as being more credible. My duty is to assess if prosecutions, through the testimony of the witnesses, prove its case beyond reasonable doubt.
14. Both the defendant and PW1 have previous criminal records of breach of condition of stay and making false representations to the immigration and the police. PW1 has a recent conviction for possession of dangerous drugs while the defendant had a conviction for criminal damage.
15. About PW1’s personal background, he said he first came to Hong Kong in 2001. He overstayed and was convicted of the offence of breach of condition of stay for overstaying. He subsequently came back to Hong Kong on a different identity. In 2005 his false identity was discovered and he was prosecuted and convicted of the offences of making false representation to the police and to the immigration. Shortly before this trial PW1 was convicted of the offence of possession of dangerous drugs (cannabis) for which he was given a suspended sentence.
16. The defendant averred to a positive good character by putting forward a good citizen award certificate given to him in 2000 when he and his wife assisted a lady who was badgered and assaulted by another. On the other hand he has a total of 5 criminal convictions.
17. The 3 defendant witnesses’ account cast doubt on PW1’s credibility about the relationship PW1 had with the defendant. None of them witnessed the events on the evening in question. Prosecution suggested the DWs lied for the benefit of the defendant on account of their close relationship with the defendant. Sajjad (DW1) has convictional record for drugs.
18. The defendant suggested it was a total frame up by PW1. He never tried to take PW1’s phone nor did he assault PW1. According to the events painted by the defendant and his witnesses, PW1 and the defendant were friends and there was no grudge between PW1 and the defendant, save that the defendant wished to have PW1’s assistance for chasing up a loan from Khawaja. There was really no plausible explanation why PW1 wished to frame the defendant up for some events which did not happen to draw the attention of the police officers. One must bear in mind the fact that PW1 would likely be the last group of people on earth who would like to attract the attention of the police officers when him was likely an illegal worker who has a drug addiction problem. One can well understand it could only be in situations where PW1 genuinely felt the need of police protection for him to approach the authorities for assistance.
19. On the other hand, the fact that the defendant never attempted to run away when PW1 reported the matter to the police and when PW1 approached the uniform police officers for assistance does not sit comfortably with the notion that the defendant had attempted to rob PW1 a few moments ago.
20. I accept there was discrepancy between the evidence of PW1 and PW2 on where PW1 stood when the police officers arrived at the scene. I accept PW1 has not told the court the fact that after he had walked away from the defendant but had walked back to where the defendant stood when the police officers arrived.
21. Though I have reservation about PW1’s honesty about his acquaintance and his previous dealings with the defendant, and despite PW1 having no noticeable injuries on his neck, I accept beyond reasonable doubt the defendant did, punch PW1 on his neck, held him by his arm and had attempted to take the mobile phone of PW1 in the way it was described to the court by PW1.
22. I do have reservation about the account given by the defendant about the suggested loan recovery request made to PW1 on the night in question. If the defendant had an argument with PW1 three days before the events when he solicited the assistance of PW1 to help recovering his loan from Khawaja. I see no logical reason why the defendant believed PW1 would help him 3 days later when the same request was rejected earlier on.
23. In a criminal proceeding, the defendant has no burden of proof. Even if his account is incredible the prosecution’s case has to stand on its own feet.
24. An intention to deprive permanently does not sit well with the fact that the defendant has made no attempt to flee when he saw PW1 approach the patrolling police officers. As to whether the defendant was demanding to have PW1’s phone for a purpose not disclosed to this court by either PW1 or the defendant, this court should not enter into speculation, suffice for me to say I am prepared to accord the defendant the benefit of doubt on whether he had the intention of permanently depriving PW1 of his phone.
25. On the evidence I am satisfied beyond reasonable that the defendant had assaulted PW1 by punching PW1 on his neck and had grabbed PW1 by his hand and scratched PW1’s hand in course of the struggle. I find the defendant guilty of the common assault charge (under s.32 of the Theft Ordinance, Cap 210) but not guilty of the robbery charge for the benefit of doubt I accord him on his intention when demanding the phone.
Reasons for Sentence
The defendant was acquitted of the robbery charge and convicted of the statutory alternative of common assault. His previous convictions are of a dissimilar nature. The complainant apparently had not disclosed in detail his relationship with the defendant. To reflect the gravity of the events, I impose a custodial term of 4 months suspended for a period of 2 years to enjoin the defendant’s good behaviour for the coming 2 years.
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