HKSAR v. Mughal Ziaur Rehman

HCMA 342/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 342 OF 2016

(ON APPEAL FROM KCCC NO 473 OF 2016)

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J U D G M E N T

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1.The appellant, Mughal Ziaur-Rehman, was the 2^nd defendant at this trial before Gary Chu, Deputy Magistrate.  The appellant and the 1^st defendant, Mr Mohammad, were on trial for one count of theft, Charge 1, and one of handling stolen goods, Charge 4.  The learned magistrate acquitted both the appellant and the 1st defendant of Charge 1, but convicted both men of Charge 4.  The appellant now appeals against his conviction.

2.The two charges concerned some properties found on the appellant and the 1^stdefendant at the time of arrest; namely, eight pieces of copper for Charge 1 and some properties belonging to PW1 for Charge 4.

3.Three witnesses testified for the prosecution:  PW1, a civilian witness, was in fact the owner of the properties which formed the subject matter of the 4^th charge; PW2 and PW3 were the respective arresting officers of the 1^st defendant and the appellant.  

4.PW1 gave evidence that on 1 February 2016 at about 9:45 pm, her rucksack, P11, with her wallet, bank cards and other personal items inside were stolen by an unknown man when PW1 was shopping alone at YATA supermarket in Kwun Tong.

5.At about 1:55 am on 2 February 2016, PW2 and PW3 found the appellant and the 1^st defendant acting furtively at the junction between Shek Kip Mei Street and Ki Lung Street, Sham Shui Po.  PW2 and PW3 intercepted the appellant and the 1^st defendant for enquiry.  At that time, the 1^st defendant was carrying the rucksack of PW1, ie P11, inside which a credit card receipt, P2, was found.

6.The 1^st defendant also carried another rucksack which contained five pieces of copper and a pair of pliers.  As for the appellant, he was carrying a rucksack, inside which were three pieces of copper and a crowbar.  Other tools, including pliers and screwdrivers were also found on the appellant.  The 1^st defendant gave an explanation at the scene that the copper was dismantled and extracted from another building.  As for the appellant, he said in the beginning that the items were picked up from the street, but later he admitted that the copper was extracted from another unknown building.

7.Both the appellant and the 1^st defendant were taken back to the police station.  At the police station, the bank cards, membership cards and cash coupons, exhibit P3 to P10, were found from the left sleeve of the jacket of the appellant.  The aforesaid bank cards, membership cards and cash coupons, P3 to P10, and the rucksack, P11, and the credit card receipt, P2, formed the subject matter of the 4^th charge.

8.Both the appellant and the 1^st defendant elected to give evidence.  The 1^st defendant gave evidence that he bumped into the appellant on Cheung Sha Wan Road by coincidence at around 11 pm on 1 February 2016.  At the scene of arrest, he told the police that the copper found on him had been picked up by him from scrap boxes in Cheung Sha Wan Road.  According to his live evidence at trial the copper were found inside two plastic bags near the pavement outside a building.

9.The 1^st defendant and appellant took the copper and the tools from the bag; they intended to sell them as they believed these were abandoned properties.  The 1^st defendant also gave evidence that there were three to four bank cards near the scrap boxes.  The bank cards and the copper were 20 to 30 feet apart.  He found the copper first and the bank cards were found by the appellant later.

10.The appellant gave evidence that he was a Form 8 holder.  He met the 1^st defendant in Chung Sha Wan Road after 12 midnight by coincidence.  As he was walking down the street he found some copper and tools inside the bags next to the garbage bins.  He thought those were abandoned properties, so he and the 1st defendant intended to sell them but were intercepted by the police shortly thereafter.

11.As for the rucksack, P11, and the bank cards, the subject matters of Charge 4, the appellant gave evidence that about two to three minutes before the discovery of the copper they found a rucksack, ie P11, at the garbage bin near the MTR station.  P11 contained a fish and some bank cards.  Although they tried to explain to the police, the police ignored them and brought them back to the police station.  He denied he had ever been to YATA supermarket.

12.During cross-examination, the appellant gave evidence that he was going to take the bank cards to Mongkok police station.  He was aware that the bank cards belonged to another person and they were of value to that person.  He had totally forgotten to tell the police that he had found the bank cards.

13.The magistrate, in paras 22 to 38 of his Statement of Findings, analysed the evidence he heard.  He rejected the evidence of the appellant and that of the 1^st defendant as he found that there were material discrepancies between their versions of events.  The 1st defendant said the two met up at 11 pm while the appellant claimed it was after 12 midnight (para 23 of the reasons for verdict).

14.At the time of interception, the 1^st defendant said that they were standing still, but the appellant claimed that they were walking down the street (para 24 of the reasons for verdict).

15.As to where the bank cards were found, D1 (the 1^stdefendant?) said the bank cards were found near the scrap boxes, whereas the appellant said they were found at the garbage bin near the MTR station (para 26 of the reasons for verdict).

16.As for the evidence of the appellant, he gave evidence that he handed the bank cards and cash coupons to the police at his own volition, but that part of his case had never been put to PW3 (para 26 of the reasons for verdict.

17.The learned magistrate also pointed out in para 27 of the reasons for verdict that there was no reason why the rucksack and the bank cards should be separately kept.  The 1^st defendant claimed that the two were going to bring the properties to the police station.  However, the bank cards and coupons, P3 to P10, were all in the appellant’s possession, if the two were going to return P11 and P3 to P10 to the police station, there was simply no reason to separate them.

18.The magistrate pointed out that P3 to P10 are light objects and there is no reason why they should be carried separately from the rucksack, P11.  Given the fact found by the magistrate that P3 to P10 were being hidden in the left sleeve of the appellant's jacket and they were separated from P11, the magistrate found it incredible that the appellant and the 1^st defendant really wanted to return them to the police station.

19.The magistrate also found the evidence of the appellant evasive; see para 28 of the reasons for verdict.  The learned magistrate considered the explanation given by the appellant in his record of interview, but he rejected the contents.  The magistrate rejected the suggestion that valuable items, such as the tools and bank cards, could be found from the trash on the street and had been coincidentally picked up by the appellant and the 1st defendant.

20.The learned magistrate considered the evidence of PW1, PW2 and PW3 and found all three witnesses’ evidence clear, cogent and straightforward.  They were firm and unshaken under cross-examination. The magistrate found them as honest and reliable witnesses.

21.As for the oral admission made by the appellant at the scene, as the appellant speaks Urdu and there was no interpreter at the material time, the magistrate decided not to put any weight to the oral admission given by the appellant at the scene.  With the exclusion of the admission, there was no evidence as to the ownership of the copper.  The copper was evidently not in good shape and there was no evidence as to the value of the copper.  For these reasons the magistrate found that the prosecution had failed to prove that the appellant and the 1^st defendant had stolen the eight pieces of copper in question, so he acquitted them of the 1^st charge.

22.As for the 4^th charge, the appellant and D1 were found in possession of the rucksack and the bank cards.  The only issue was whether they dishonestly received them.  In para 24 of the reasons for verdict, the learned magistrate drew the only irresistible inference that the appellant and the 1^st defendant knew, or believed, those items were stolen properties.  The evidence of PW1 was that she lost the items at about 9:45 pm on 1 February 2016.  These items were stolen from her, by unknown male, when PW1 was shopping at YATA supermarket in Kwun Tong.

23.Within two to three hours after these items had been stolen from PW1, the appellant and the 1st defendant were found in possession of the stolen properties; The bank cards and the coupons were hidden in the appellant’s sleeve, and P3 to P10 were separated from P2 and P11, which were carried by the 1^st defendant.  Based on the aforesaid evidence the magistrate drew the irresistible inference that the appellant and the 1^st defendant knew or believed those items were stolen properties.

24.Before me, the appellant argued that all the items were found in the garbage.  The appellant said he and 1^st defendant went to the police by themselves; it was they who contacted the police.

25.The appellant said the CCTV captured it was someone else who stole the things of PW1.  

26.The police had asked the 1^st defendant and the 1^st defendant had also told the police the same version of events as the appellant did.  The 1^st defendant also told the police that they wanted to take the things to the police. The appellant submitted that given the fact that he was a Form 8 holder, he would not be able to use any of the cards.  All along it was the intention of the appellant and the 1^st defendant to bring the items to the police.  The appellant said he did not know the rucksack, the cards and the coupons were stolen properties.

27.Mr Wong, for the respondent, submitted that the appellant was just repeating his evidence given at his trial, which was rejected by the magistrate. Looking at the evidence, there was no reason why the rucksack, P11, should be separately kept from the bank cards and the coupons, P3 to P10.  P3 to P10 were in fact hidden in the left sleeve of the appellant.  Sound reasons were given by the magistrate as to why he rejected the evidence of the 1^st defendant and the appellant.

28.The evidence before the magistrate showed that the 1^st defendant and the appellant were intercepted by the police.  The fact that the appellant was unable to use the stolen properties was neither here nor there, as use of the stolen goods is not an element of the offence for handling stolen goods.

29.I have heard the submissions of the appellant and also that of the respondent.  What the appellant told me today had in fact been considered by the magistrate.  The magistrate had considered the evidence carefully.  He gave detailed reasons why he rejected the evidence of the 1^st defendant and that of the appellant.  The magistrate identified some material discrepancies between the evidence of the appellant and that of the 1^st defendant.  

30.If it were the intention of the appellant and the 1^st defendant to carry the rucksack and the bank cards and the coupons to the police as they claimed, there was no reason why the rucksack should be separately kept from the bank cards and the coupons.  From the way P3 to P10 were being hidden in the left sleeve of the appellant's jacket and that they were separated from the rucksack, P11, the magistrate rejected the suggestion that the appellant and the 1^stdefendant were going to return them to the police station.  The reasons given by the magistrate were sound and cogent.

31.For the point made by the appellant that the CCTV showed that it was someone else who stole the property of PW1, the appellant was convicted of handling stolen goods, not theft of the rucksack and the items contained therein.  The fact that the CCTV captured that it was an unknown male who stole the properties of PW1 from her did not assist the appellant’s case.

32.The appellant reiterated that it was the intention of the 1^st defendant and the appellant to bring the things to the police station.  The magistrate had heard the evidence of the 1^st defendant and the appellant, the magistrate gave cogent and sound reasons why he rejected the evidence.

33.I see no reason why I should interfere with the findings of the magistrate. The magistrate had the advantage of seeing and listening to the evidence of live witnesses in court.  Unless the findings of the magistrate were plainly wrong, I would be slow to interfere with the findings of the magistrate.

34.The appellant made the point that he, as a Form 8 holder, would not be able to use any of the stolen cards, but as Mr Wong for the respondent rightly pointed out, use of the stolen items is not an element for the offence of handling stolen goods.  The only issue before the magistrate was whether the appellant and the 1^st defendant received the stolen properties dishonestly, knowing that or believing that they were stolen properties.

35.In the end, I agree with the findings of the magistrate, the ones that he made in para 39 of the reasons for verdict.  On the basis of the recent possession of the stolen goods, P2 to P11, by the appellant and the 1^st defendant, and from the way P3 to P10 had been hidden in the left sleeve of the appellant and separate from P2 and P11 which the 1^st defendant was carrying at the time of the arrest, the only irresistible inference was that the appellant and the 1^st defendant had dishonestly received P2 to P11.

36.P3 to P10 were obviously valuable personal properties.  The only irresistible inference was that the appellant and the 1^st defendant must have known or believed that those items were all stolen properties.

37.I would have come to the same conclusion as the magistrate did.  The evidence against the appellant and the 1^st defendant was strong.  The magistrate convicted the appellant and the 1^st defendant on solid evidence for sound reasons.  The grounds of appeal as put forward by the appellant are completely devoid of merit.  The appeal against conviction is dismissed.

Mr Wong Chun-Hin Derek, Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant appeared in person