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Hksar v Saeed Ur Rehman

Judgment Cited authorities 4 Cited in 1 Precedent Map Related
Vincent
Judgment Date09 August 2018
Neutral Citation[2018] HKCA 503
Citation[2018] 4 HKLRD 135
Judgement NumberCACC257/2017
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC257A/2017 HKSAR v. SAEED UR REHMAN

CACC 257/2017

[2018] HKCA 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 257 OF 2017

(ON APPEAL FROM DCCC NO 135 OF 2017)

___________________

BETWEEN
HKSAR Respondent
and
Saeed Ur Rehman Appellant

___________________

Before: Hon McWalters, Poon and Zervos JJA in Court

Date of Hearing: 19 July 2018

Date of Judgment: 19 July 2018

Date of Reasons for Judgment: 9 August 2018

_______________________________

REASONS FOR JUDGMENT

_______________________________


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

1. This appeal concerned an issue about the interpretation of the evidence of a defence witness at the trial of the appellant.[1] At the conclusion of the hearing, we dismissed the appeal and these are our reasons for doing so.

2. The appellant and Ilyas Muhammad stood trial before District Court Judge Dufton (the judge) jointly charged with the offence of attempted burglary.[2] The particulars of the offence alleged that they “on 27th day of December 2016, attempted to enter as trespassers part of the building known as 7th Floor, No. 38F Kweilin Street, Sham Shui Po, Kowloon, with intent to steal therein.”[3]

3. Ilyas Muhammad was the 1st defendant (who will be referred to as the 1st defendant) and the appellant was the 2nd defendant on the charge sheet.

4. The 1st defendant pleaded guilty to the charge, while the appellant pleaded not guilty and proceeded to trial. The appellant also faced another charge for an offence of burglary but this was not proceeded with by the prosecution.[4]

The 1st defendant’s plea of guilty

5. In pleading guilty to the charge, the 1st defendant admitted that he together with the appellant attempted to burgle the premises as described, and this was supported by a summary of facts to which he agreed. In those summary of facts, the 1st defendant was referred to as “D1” and the appellant as “D2”. The relevant paragraphs read:

“2. At about 7:39 p.m. 2 police officers (PWs 2 & 3) arrived to investigate. When PW3 reached the staircase at 7/F he heard the noise of something striking metal and 2 men speaking in a foreign language. He then saw the defendants. D2 was looking round whilst D1 was using a crowbar to prise open the window of the flat.

3. PW3 then approached the defendants and revealed his identity. When D2 saw PW3 he shouted and he and D1 fled towards the staircase. D1 dropped the crowbar which was later seized by police. PW3 intercepted D2 while D1 was intercepted by PW2. They were arrested.”[5]

The appellant’s trial

6. The prosecution case against the appellant was that he was keeping a lookout for the 1st defendant who at the time was trying to force open the window of the premises with a crowbar. A report was made to the police who attended the scene. The first police officer in attendance observed the two men attempting to break into the premises. When he shouted “police”, they immediately ran off. He then apprehended the appellant who was closest to him, while another police officer apprehended the 1st defendant.

7. The appellant’s case was that he did not know the 1st defendant, and that he was in the building at the time to collect money from a friend. The friend was not at home and as he was leaving he was arrested by the police. The appellant gave evidence and called the 1st defendant as a witness. They are both Nepalese nationals and gave their evidence through a Urdu/English interpreter.

8. At the conclusion of the trial, the judge convicted the appellant of the offence of attempted burglary and sentenced him to 3 years and 3 months’ imprisonment.

9. The issue in this appeal concerns the translation of an answer of the 1st defendant to a question asked of him during cross-examination. Before examining this part of the 1st defendant’s evidence, it is necessary to provide a summary of the evidence presented at trial.

The prosecution evidence

10. The prosecution case relied on the evidence of the owner of the premises where the attempted burglary took place, and the two arresting police officers.

11. The premises in question were a flat owned by Mr Ho Pak Tsai (who was PW1 at trial).[6] It was accessible by a corridor connecting the front staircase with the rear staircase of the building. The flat’s door and kitchen window both faced the corridor, along which there were four units altogether.

12. At about 7:30 pm, on 27 December 2016, Mr Ho heard the sound of metal banging coming from the kitchen, as well as two men talking in a foreign language. He went to the kitchen and saw the figure of a person outside the kitchen window, who was tampering with it. At about 7:37 pm, he reported the matter to the police, and a few minutes later, four police officers arrived at the scene.

13. PC11620 (who was PW3 at trial) and PC6985 entered the building from the front staircase, while PC15607 (who was PW2 at trial) and PC6260 entered from the rear staircase.[7] Upon reaching the 7th floor (which was also referred to as the 8th floor), PC11620 heard the sound of metal being struck and the voices of two men talking in a foreign language. From a gap in the doorway at the top of the staircase leading to the 8th floor, he observed the appellant looking around his surroundings while the 1st defendant was using a crowbar to prise open the bottom window of the kitchen.

14. PC11620 then went forward and shouted “police”. The appellant looked at the 1st defendant and shouted something, whereupon they both ran off towards the rear staircase. PC11620 immediately intercepted the appellant who was closest to him, while the 1st defendant dropped the crowbar onto the ground and made his way to the rear staircase. In the meantime, PC15607 had reached the 8th floor from the rear staircase and saw the 1st defendant running towards him. PC11620 called out to PC15607 to stop the 1st defendant which he did. PC15607 saw that PC11620 had intercepted the appellant in the middle of the corridor who was being assisted by another police officer, PC6260.

15. PC11620 searched the appellant and found a wig in the pocket of his jacket. PC15607 searched the 1st defendant and found a receipt for a crowbar, a torch, two screwdrivers and a pair of scissors.

16. An inspection of the flat revealed that the lock of the kitchen window had been broken and the exhaust fan was knocked out of its frame into the kitchen.

The defence evidence

17. The defence case rested on the evidence of the appellant and the 1st defendant.

The appellant’s testimony

18. The appellant testified that he went to the building to collect money he had lent to a friend by the name “Limbu”, who lived on the 8th floor of the building.[8] Limbu was not at home, and as he was walking down the stairs to leave, three to four uniformed police officers were coming up the stairs and told him in English not to move. He stood there and asked the police if there was a problem. He said the police then took him to the end of the corridor on the 8th floor and told him to stand there. He was asked by the police what he was doing, and he replied that he was meeting his friend to collect money. Several minutes later while the police were talking to him, the 1st defendant was brought up to the 8th floor who was made to sit in front of him.

19. The appellant said he did not know the 1st defendant. He said he did not go to the building with him; did not assist him to break into any flat; and did not see him use a crowbar. He said the police asked the 1st defendant if he knew him but the 1st defendant did not respond at first because he was very frightened. When the police asked the 1st defendant a second time, he told the 1st defendant to tell the police whether he knew him but the police told him to keep quiet. The police asked the 1st defendant again if he knew the appellant and he replied he did not know him. He said the police had taken another Nepalese male to the corridor but he was not the one from whom he had borrowed money. He said the 1st defendant identified the other Nepalese male as his friend and that he had come to the building to meet him. He said that the police brought up the Nepalese male because the 1st defendant had told him that his friend lived there.

20. In cross-examination, the appellant explained that the police first spoke to the 1st defendant in Chinese and then in English but he did not reply. He said that he therefore explained to the 1st defendant that they were asking him what they were doing there. He said that the 1st defendant told him that he was there to meet his Nepalese friend which he conveyed to the police. He was questioned about why he had a wig in his possession. He said that it was given to him that evening by a friend as a sample to see if he could sell them.

21. In a subsequent video recorded interview, the appellant confirmed that he did not know the 1st defendant and did not see him in possession of a crowbar.

The 1st defendant’s testimony

22. As the evidence of the 1st defendant is the subject of this appeal, it will be necessary to examine his evidence in some detail although it was fairly brief.[9]

23. In examination-in-chief by counsel for the appellant, the 1st defendant agreed that he pleaded guilty to the charge in the case and that he admitted the brief facts as true and correct. He confirmed that at the time he was at the premises with another person, who was not the appellant, but someone else whom he described as “Pria Nepali”. He said that he did not see the appellant at the location and did not know him before the date of the offence. He was asked if at any stage did the appellant assist him to do anything and he answered affirmatively. Notwithstanding that he agreed to the appellant assisting...

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