HKSAR v. Sainbayar Amarsaikhan

DCCC 133/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 133 OF 2015

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Reasons for Verdict

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1.D1 and his co-accused D2 faced one single count of theft.  On the first day of the trial, D2 pleaded guilty to the charge and his sentence was adjourned until the conclusion of D1’s trial.

2.Briefly, the prosecution alleged that D1 and D2 jointly stole a mobile phone from the victim who was having a drink with two of his friends in the early hours outside a restaurant called Big Pizza in Lan Kwai Fong (LKF).  Both defendants were later intercepted at Wyndham Street.  The police officer recovered the stolen mobile phone from D2’s underpants.

3.It was D1’s defence that he had nothing to do with the theft as he was drunk.  The offence was committed by D2 only. D1 said so in his video-recorded interview and D2 maintained that when he testified in court.

4.Pursuant to section 65C of the Criminal Procedure Ordinance Cap 221, the following facts are admitted (Exhibit P11):

1. D1 is a national of Mongolia and he entered Hong Kong as a visitor on 16 January 2015. D1’s immigration movement record is produced as at Exhibit P9.

2. The white mobile phone belonged to PW1, Yu Ka-ho.

3. D1’s identity is not in dispute.

4. At 2:50 am on 21 January 2015, PW2, Chong PC34315 arrested D1 for the offence of theft.

5. On 21 January 2015, the police officers served D1 with two Pol 153 notices and then a video-recorded interview was conducted in the presence of one English police interpreter and one Mongolian interpreter. The said interview was conducted voluntarily and its admissibility would not be challenged. The DVD of the interview is exhibited as P10 with the transcript of the said interview exhibited as P10A.

6. The photo albums relating to the victim’s clothing and the stolen phone and the scene are exhibited as P2 and P6 respectively.

PW1 Yu Ka-ho, Kaiser

5.He is aged 24.  He is a student of the Hong Kong U SPACE.  At about 2:30 am on 21 January 2015, he went to LKF to have a drink with two of his friends.  They had drinks outside Big Pizza.  He was having a bottle of beer and it was the first time he consumed alcohol that day.

6.Whilst he was drinking, PW1 saw two males coming over.  One of them, later known as D1, was sitting outside the shop next to Big Pizza, and D2, the shorter one who was wearing a cap, approached and chatted with PW1 for one or two minutes.  D2 was close to PW1.  PW1 could not smell alcohol from D2.  For no reason, D1, who appeared to be drunk, bumped into PW1.  D1 was going to fall down, and PW1 helped him up.  They talked to PW1 but PW1 could not understand what they said.  Soon afterwards, both D1 and D2 walked away and took the same route back to Wyndham Street.  PW1 had put his phone into his right jacket pocket which was not buttoned.  He found his phone missing.  PW1 then gave chase.  Both defendants walked at a fast pace.

7.PW1 managed to intercept D1 and D2 and asked them about his phone.  They spoke something that PW1 could not understand.  Later, two police officers in plainclothes appeared from behind. The officers asked PW1 what had happened and PW1 told the officers that he suspected the defendants were the ones stealing his phone.  The defendants were just about 1 metre away.  The officers then searched the defendants.  They did not find anything during the first search but, eventually, recovered PW1’s phone in D2’s underpants.

8.PW1 said that at first D1 sat on the ground outside the shop next to Big Pizza and appeared to be drunk.  He then bumped into PW1.  At that time, PW1 was drinking a small bottle of beer and was smoking.  D2 talked to PW1 in English but later, PW1 could not communicate with him.  PW1 was using “Hong Kong style” English.  PW1 maintained that the police officers appeared from behind when PW1 intercepted the defendant.  He thought that D1 was drunk.  PW1 said D1 bumped into him only once.

9.Under cross-examination by defence counsel, PW1 agreed that the spot that he intercepted both defendants was quite far away from the location of Big Pizza.  It took him about five minutes to reach the spot.  The police officers then arrived shortly.

10.PW1 said that at the very beginning, he saw both defendants walking towards him when he was outside Big Pizza.  After D1 bumped into PW1, D1 sat on the ground.  Both PW1 and D2 made attempts to help D1 up.  PW1 did not notice if D2 was helping D1 on the way when they were walking away from Big Pizza.

11.The prosecution was able to cause photos of the crime scene to be taken over the lunchtime on the first day of the trial, which should have been done when the case was being investigated and/or the trial was prepared.  The defence has no objection for the prosecution to produce the coloured photocopy of the photos (Exhibit P6) and for the prosecution to reopen the examination-in-chief of PW1. 

12.PW1 then identified various spots and the route that both defendants adopted when leaving the scene by reference to the photocopy of the photos.  The defendants used the same route leaving the scene as when they first came down the slope to approach PW1.  PW1 was surprised that a drunk man could walk so quickly.  PW1 did not pay attention whether D2 was helping D1 out when leaving Big Pizza.

13.PW1 chased after them and managed to intercept both defendants outside the building as depicted in Photo No 14.  PW1 observed that D1 was too drunk or too tired that he sat down on the ground.  D2 was leaning against the wall of the building.  PW1 asked D2 in Chinese but D2 spoke something that PW1 did not understand.  PW1 later realised that two police officers in plainclothes were following him and they were behind him. The officers asked PW1 what had happened.  PW1 agreed to the suggestion that D1 was clearly drunk, judging from D1’s act and the smell of alcohol.  But PW1 said that he found it strange that a drunken man could walk so fast.  PW1 could not elaborate how did D1 bump into his right shoulder outside Big Pizza.  Nor did PW1 know why D1 stood up from his sitting posture and bumped into him.

PW2 - PC34315 Chong Chun-man

14.At about 2:40 am on 21 January, PW2 and his colleague were patrolling outside a sitting area in LKF.  At the material time, he saw two males walking down from the ‘top’ of LKF towards the place at Number 5 of Lan Kwai Fong.  One male was wearing a light-coloured shirt and dark pants and another male was wearing a cap with a black leather jacket.  D1 is the taller male.  The lighting condition was good.  PW2 used another set of coloured photocopy of the photos (P6A) to indicate various spots at the scene.

15.PW2 observed that D1 and another male were talking to the victim.  D1 looked like drunk and bumped into the victim once.  D1 appeared that he was going to fall down, but the other male helped him up.  D1 could not stand firm on the ground.  PW2 was about 7 metres from the victim and he observed that D1 was not walking in a stable manner.  On several occasions, it seemed that D1 was about to fall down and bumped into the victim.  On the last occasion, PW2 saw D1 bumping into the victim and putting his left hand into the victim’s pocket.  D1 took away a phone from the right pocket of the victim’s jacket.  The stealing act lasted for just about one to two seconds.  PW2 observed that the victim was concentrating on talking to the other male.  The other male immediately helped D1 up and they left soon afterwards.  There were no other people except the victim and his two friends outside Big Pizza.  D1 took the phone and then put his hand around the area near his bellybutton.  PW2 could not see where did D1 put the phone.  D1’s back was facing PW2 at that time.  PW2 did not intervene at that stage as he was not sure if D1 and the male were also the victim’s friends.

16.D1 appeared to be drunk all along.  PW2 told his colleague that D1 stole the phone from the victim.  Both defendants were walking upslope along the same lane that they walked downward (see pages 5 and 7 of the photocopy of the photos bundle).  The officers gave chase.  The victim did not realise that his phone was stolen.  PW2 noticed that both defendants walked at a fast pace and soon reached the top of the road (pages 9 and 10 of the photocopy bundle) within one minute.  PW2 saw the defendants going to the pavement through the gap of the railing (see Exhibit P6B, photocopy number 10).  PW2 maintained that D1 walked at fast pace.

17.PW2 was able to intercept D1 at the corner at the top of Lan Kwai Fong.  PW2 spoke to him in Cantonese.  He did not pay attention to the whereabouts of the victim.  PW2 searched D1 while his colleague searched D2.  At first D1 was standing but later he sat down for a while.  PW2 found D1 a bit drunk and D1’s face was red.

18.Later the victim arrived.  The victim told the police that the phone recovered from D1 was his phone.  The victim was rather agitated and kept on scolding both defendants.  When PW2 arrested D1, D1 said something that PW2 did not understand. 

19.PW2 noticed that D2 looked scared when the phone was recovered.  D1 talked to D2 but PW2 did not understand what they said.  PW2 did not know if D1 was pretending to be drunk but D1 sat down on the ground and was leaning against the wall.  He appeared to be drunk.  Later the defendants were taken to the Central Police Station.

20.Under cross-examination, PW2 agreed that D1’s face was red and had a smell of alcohol.  D1 was unsteady on his feet. PW2 saw D2 chatting with the Chinese male for about two minutes.  D1 was standing next to D2 but, at times, squatted down next to the man for a while. D2 helped D1 up.  D1 acted like he was about to fall down more than once.  D1 bumped into the man more than twice but the man kept on talking to D2.  PW2 saw D1 putting his hand into the man’s pocket and took away the phone.  Both defendants then left the scene immediately.  PW2 then started chasing after them but he did not run.  PW2 eventually stopped the defendants in about 100 metres at the ‘top’ of LKF.

21.PW2 said he did not want to arrest the defendants near Big Pizza because he wanted to make sure to whom the phone belonged.  PW2 did not approach the victim but proceeded to chase after the defendants.  PW2 said he wanted to make sure of the ownership of the stolen phone but his priority was to catch the culprits.

22.PW2 remarked that he did not notice the victim was chasing after the defendants.  He rejected the suggestion that the victim was already talking to the defendants when PW2 arrived at the scene of interception.  PW2 agreed that most of the time when D1 was intercepted, D1 was sitting on the ground.

PW3 - PC34942 Lam Chun-lap

23.He was on plainclothes duty on 20 January.  At the material time, he was with PW2, that is PC34315, conducting anti-theft operation outside the sitting area in LKF.  In the early hours on 21 January, PW3 saw two men walking down from the top of LKF.  These two men kept looking at passers-by and their conduct raised his suspicion.  These two men looked at the shops and the handbags of passers-by.  The two men stopped when they reached Number 5 of LKF.  They chatted with three Chinese males standing outside the area where Big Pizza was located.  The lighting was sufficient. The taller guy (D1) put his hand on the shorter guy (D2) and bent the upper part of his body.  D1 seemed to be drunk and could not stand steadily.  The two defendants then turned around and went upwards to the top of LKF.

24.PW2 told PW3 that the taller guy stole a phone from the victim but PW3 could not see the act of stealing.  He focused on D1 and did not see D1 passing anything to D2.  They walked quickly.  PW3 maintained that D1 appeared to be drunk and he was surprised that D1 could walk quickly up to the top of LKF.  PW3 said they did not intercept the defendants outside Big Pizza because they did not want others to learn about their identities.

25.PW2 and PW3 intercepted the defendants outside No 31A Wyndham street.  He searched the shorter male (D2) and found a white Smartphone at the front waistband of D2’s underpants.  After the discovery of the phone, it came the victim who walked all the way from the pavement.  PW3 revealed his identity and the victim told him that he had lost his phone.  PW3 showed the phone that he found on D2 to the victim who was able to turn on the phone by his fingerprint identification.  PW3 asked the victim who said he did not know the Mongolian males.  PW3 then arrested D2.  PW3 could not understand what D2 spoke to him at that time.

26.Under cross-examination, PW3 said when the defendants walked down to Big Pizza, they looked at the bars and paid attention to the handbags of passers-by.  They moved their heads.  PW3 agreed that he did not witness the act of stealing, even though he was standing next to his colleague, PW2.  PW3 noticed that D1 appeared to be drunk outside Big Pizza but he was not sure if D1 engaged in conversation with the Chinese male outside Big Pizza.  D1 did not stand steadily and was about to fall.  D1 did sit on the ground for a short while.  Both defendants later walked quickly up to the top of LKF.  D1 did not have any help from D2 while walking.  PW3 walked past the victim when gave chase after the defendants but he did not alert or talk to the victim.

27.PW3 did not agree that he searched D2 twice at the spot of interception.  He also did not agree that the victim intercepted the defendant before they did.  D1’s face was red at that time but PW3 could not smell alcohol from D1.

D1’s video-recorded interview on 21 January 2015

Item 34 - D1 was born in 1994 and is a holder of Mongolian passport.

Item 106 - “I did not steal”.

Item 106, 125 - “I did not steal”.

Item 135 - “I did not take the mobile phone”. He believed male Gan Erdene take it.

Item 155 - “I was vomiting about that time”.

Item 173 - [talked to a Chinese male] “I did”.

Item 196 - “I left the bar and vomited. A Chinese male tapped on my back and said he was leaving. Gan Erdene (D2) said to me that he took his mobile phone and that we should leave quickly. I have nothing to do with this case”.

Item 218 - “We walked straight up” (after D2 said that).

Item 220 - “We walked straight up and then we turned. Right there, the male who lost his mobile phone approached us together with a police officer”.

Item 222 - “I told the police that I have not done anything wrong”.

Item 244 - (the one who stole the phone) “it was him” (D2).

Item 250 - “I did not steal. I know nothing”.

28.There was no half-time submission.  D1 elected not to give evidence, but called D2 to be his defence witness.

D2’s evidence

29.He had been in Hong Kong for about 10 months.  D2 admitted that he stole the phone from a Chinese male on 21 January 2015 and D1 was with him on the day.  On 20 January, D2 met D1 in a 7-Eleven shop in Tsim Sha Tsui.  They know each other back in Mongolia when they were young.  Then D1 went to D2’s guesthouse in Tsim Sha Tsui where they had beer.  After that, they then went to LKF.  D1 drank many beers.  When they went to a bar in LKF, two Pakistani males treated then with drinks.  D2 knew these two Pakistani males beforehand.  D2 did not know when did D1 arrive in Hong Kong.  D1 threw up outside Big Pizza in LKF while D2 was talking to a Chinese male whom D2 met for the first time.  D2 saw a phone in the right pocket of the Chinese male and D2 stole it.  D2 claimed that he did not plan to steal when he went to LKF.  D2 said he went to LKF that night to have fun with D1.  D2 said he had $700 with him.

30.After stealing the phone, D2 told D1 that they needed to flee and they would be in trouble.  They then left and it was the Chinese male who approached them round the corner at the top of LKF.  About 15 minutes later, the police officers arrived.  The Chinese male asked him repeatedly about the phone.  D2 said he did not know.  The police officer could only locate the phone after the second search.

31.Under cross-examination by the prosecution, D2 said he did not apply for any allowances from the government or UNCHR.  His family sent about $5,000 each month to him.  D2 paid about $2,000 for rent.  D2 came to Hong Kong in August 2014 but later applied to be a torture claimant as he does not want to return to Mongolia.  He knows D1 when they were little in Mongolia.  They had drinks at D2’s guesthouse and then took a taxi to go to LKF.  D2 said that he did not know how to take the MTR to go to LKF, even though he had been in Hong Kong for about 10 months.  He had visited LKF many times and went there by taxi every time.  It cost him about $150 one way.  He did not know about the tunnel fee.  He would take a taxi back to Tsim Sha Tsui.

32.D2 said he bought about 32 cans of beer from 7-Eleven before getting back to his guesthouse to drink.  When they went to LKF, only five to six cans of beer left.  He had more beers in LKF.  He only went to one bar in LKF but could not remember the name of the bar.  Two Pakistani males treated him with whiskey.  Later, D2 said he had wine, whiskey and beer in the bar.  D2 could not say why these Pakistani males bought them drinks.  D2 said he was drunk and could not remember the details.  D2 did not know where did D1 stay in Hong Kong, nor could he remember how to contact D1. D2 could not say why and how did he meet D1 in the 7-Eleven store.  D2 said D1 did not bump into the Chinese male.  D1 was vomiting while D2 was chatting with the Chinese male but the latter did help D1 up from the ground.  D2 said he was the one who stole the phone and denied it was done by D1.

33.When asked why D2 told D1 that they had to leave quickly, D2 said he was afraid and told D1 that he wanted to leave. D2 said he could not leave D1 behind because he could not leave by himself and he would not leave D1 alone.

Analysis

34.D1 is a national from Mongolia and he came to Hong Kong as a visitor in January 2015. 

35.D1 elected not to give evidence and he called D2 to testify for him.  This is D1’s right and I cannot draw any adverse inference against D1.  It is the duty of the prosecution to prove the case against D1 beyond reasonable doubt.  D1 has no duty to prove anything.  What is said or admitted in the cautioned interviews could only apply to that interviewee under caution but not to other co-defendant, but what was said by D2 in the witness-box could be evidence against D1.

36.The police found the stolen phone on D2. D2 made a wise decision and he pleaded guilty to the charge in order to have a discount in sentence.  D2 testified as the defence witness for D1 and apparently he just shouldered all the blame and exonerated D1 from this theft.

37.I find D2 not a credible witness by any standard.  He said he came to Hong Kong and his family maintained his living here.  D2 got $5,000 each month from his family.  He filed the torture claim so that he can stay in Hong Kong but he did not register with UNCHR and did not get any allowances from the Hong Kong Government.  He lived in a guesthouse in Tsim Sha Tsui and apparently led a leisure life.  He did not know how to take the MTR to travel to LKF in Central, he just took a taxi to and fro LKF.  Each journey cost him about $150. 

38.On the night of 20 January, he somehow met D1 in a 7‑Eleven store and they had more than 20 cans of beer in D2’s guesthouse.  In the early hours of 21 January, they took a taxi to Lan Kwai Fong for fun.  They went to only one bar in LKF and it so happened that D2’s Pakistani friends were in the bar.  D1 and D2 had more drinks, including whiskey, beer and wine.  D2 did not know the name of the bar.  He could not explain why he and D1 left the bar and then walked down to the Big Pizza and chatted with the victim and then walked along the same route upslope back to Wyndham Street.  Why did not D2 walk downwards to the area of Pedder Street?

39.After D2 stole the phone, he told D1 that he stole the phone and they needed to leave quickly.  D2 claimed that he was drunk and D1 even more so.  Yet they could walk uphill to the top of Lan Kwai Fong quickly.  D2 insisted that D1 had nothing to do with the theft.  The same version was maintained by D1 in his video-recorded interview.

40.I do not believe the version put forward by D2 in the box.  How could he maintain his standard of living in Hong Kong while making a torture claim?  Why he and D1 had to take a taxi in the early hours of 21 January to Lan Kwai Fong after they had already consumed many cans of beer?  How he met D1?  If D2 felt scared after the stealing and D1 had nothing to do with it, why did D2 not leave D1 behind and take a taxi to leave the scene right away?

41.That said, whilst I disbelieve D2’s evidence in court, I have to consider all the evidence presented by the prosecution. The phone was found on D2.  The only witness of the act of stealing was PW2 who said he saw D1 bump into the victim several times and then steal the phone.  D1 passed the phone to D2 while fleeing from the scene.  However, PW2’s colleague, that is PW3, could not see the act.  Nor can PW3 see how the phone changed hands.

42.All the prosecution witnesses said D1 was drunk, or appeared to be drunk.  D1’s face was red and at some stages, D1 sat on the ground outside Big Pizza and also on the area when the defendants were intercepted. 

43.One crucial discrepancy between the victim and the officers that affected the quality of observation of the police officers is that the victim said he intercepted the defendants at the place of the arrest prior to the arrival of the officers.  The victim maintained that PW2 and PW3 were behind him.  PW2 and PW3 however said, after the interception, then came the victim who was agitated and kept on scolding the defendants.  It was the victim who asked the police officer to conduct a second body search at the scene while the officers said they discovered the phone and showed it to the victim.

44.D1 did not make any admission.  He denied his involvement right from the beginning.  From D1’s movement record, (Exhibit P9) D1 came to Hong Kong on 13 January 2015 and was scheduled to leave for the mainland on 16 January but cancelled his departure.  He eventually left for Macau on 19 January and returned on 20 January.  Something sinister was going on.  I have great reservation as to whether D1 was really drunk at the material time.  Or was he just pretending to be drunk so as to distract people’s attention?  If he was so drunk, it would be a mystery as to why he could walk up to the top of LKF at a quick pace.

45.The victim and the police officers had to give chase after the defendants.  It was claimed by D1 in his cautioned interview and D2 in the witness-box that D2 told D1 that he had stolen a mobile phone after the fact.  If that was the case, that is, the offence had been completed already, then I am of the view that D1 could not be taken as an accomplice.

46.All in all, the conduct of D1 was very suspicious.  That said, given the discrepancy in evidence between the prosecution witnesses, I am obliged to give the benefit of the doubt to D1.  In the circumstances, I find the prosecution failed to prove the case against D1 beyond reasonable doubt.  Accordingly, I acquit D1 of the charge.