HKSAR v. Vo Truong Han

DCCC 1172/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1172 OF 2016

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REASONS FOR VERDICT

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Introduction

1.Defendant (male) (Vietnamese) (aged 28 years) came before me and pleaded not guilty to a single charge of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  The particulars of the charge aver that defendant, on 26 October 2016, at “UNIQLO”, Level 3, Apm Millennium City 5, No 418 Kwun Tong Road, Kwun Tong, Kowloon, in Hong Kong, together with other persons unknown, stole 4 pieces of garments, property belonging to UNIQLO HONG KONG LIMITED.

Prosecution Case

2.The prosecution described the case as an “organized theft” that took place inside UNIQLO where defendant in conjunction with 3 other unknown persons (“WP1-WP3’) committed the offence together and stole from the shop four grey lady jumpers.  By an Admitted Facts (Exh. P3) the prosecution produced a photo album (Exh. P1) consisting of photos taken by PW1, the police and captured by the CCTV camera of the shopping mall.  9 CCTV disc (Exh. P2) capturing images of the shopping mall were also produced by consent.  The main prosecution witness is Madam Chan Lai-yung (PW1) whereas the arresting police officer PC 17306 (PW2) was only tendered for cross-examination.  PW1, who was a security officer in plain clothe duty, first saw a male (WP1) and a female (WP2) were acting furtively inside the shop.  They were looking around and wandering aimlessly. As they were not speaking Cantonese, PW1 paid particular attention to them and kept them under her observation.  Later, PW1 saw WP1 and WP2 each took two grey jumpers of the same style (Exhibit P4) from a rack of the lady section and placed them around their forearms.  PW1 felt curious and she was following them in a distance of about 2 to 3 metres away.  They subsequently moved to the men section and stuffed the jumpers inside a shelf which was situated in a more obscure location where there were fewer customers and walked away. Then, PW1 noticed another male (WP3) who was wearing a purple rucksack (Exh. P5) and a dark-coloured T-shirt and defendant who was wearing a Yellow T-shirt and jeans arrived and they met up with WP1 and WP2.  They were acting as if they did not know each other and did not talk but before that, they were seen gesturing and making eye signals to each other.  During the observation, PW1 had used her mobile telephone and pretended that she was talking and took photographs of WP2, WP1 and defendant. (Exh. P1(1)-(4))

3.PW1was hiding herself behind a rack when she later saw the four of them went to the shelf where WP1 and WP2 had stuffed the four jumpers.  She described the area was narrow in space and there was just enough room for the four people.  She said she could not take photographs at that very moment as she was squatting down and peeking behind the clothes hanging on the rack but she could still see very clearly that WP3 then turned around so that his rucksack was facing the other three persons.  WP1 and defendant then retrieved the jumpers from the shelf and placed them into the rucksack carried by WP3.  WP2, the female, was seen acting as a look out at that time.

4.WP3 carried the purple rucksack on his shoulders and left the shop without making payment.  Anti-Theft System of UNIQLO was not activated.  PW1 immediately went outside the shop and followed him.  WP3 went out of the shop in a quicker pace and stepped on an escalator to go to the lower level.  PW1 chased him from behind and halfway down the escalator, she managed to grab hold the strap of the purple rucksack from behind.  WP3 shoved off the purple rucksack and ran away.  PW1 immediately picked up the rucksack and ran after him and shouted ‘Robbery’ but WP3 managed to run away and disappeared into the crowd.

5.PW1 took the escalator to go back to Level 3 and there she met defendant near the escalator landing.  When defendant saw PW1 looking at him, he immediately used his hands to cover his face and lowered down his head at the same time.  PW1 took a photo of him (Exh. P8) at that moment.  Afterwards, PW1 started to chase after him and he immediately went on an escalator to go up to Level 4.  PW1 followed him.  Then, defendant went to the other side of the shopping mall and took an escalator to go down to Level 3.  PW1 chased after him and during the chase, PW1 shouted by saying: ‘Help me to catch the man in yellow T-shirt!’  Some passersby heard the shouting and chased after defendant and grabbed hold of him and pressed him down on the UC level known as the Upper Concourse.  PW1 later arrived and could see the strap of the cross-body bag carried by defendant was also torn apart.  She was physically exhausted at the time. The security guards of the shopping mall later also arrived to assist and they took defendant to the lift lobby area of the backstairs and guarded him.  The case was later reported to police and subsequently, PC 17306 (PW2) arrived with other two policemen and he made enquiry of the case from PW1.  The police opened the rucksack and pulled out the four grey jumpers and defendant was arrested.  Photos of the jumpers and the rucksack were taken and identified by PW1 in court (Exh. P (10) -(13)).  It was revealed in the photo that there was an aluminum foil fitted inside the rucksack apparently to evade the detection of the anti-theft alarm system of the shop.

6.The subsequent record of interview of defendant under caution taken on 27 October 2016 (Exh. P6) together with its English certified translation (Exh P6A) were also produced by another Admitted Facts (Exh. P7) upon the request by the defence.

Defence Case

7.At the close of the prosecution case, I ruled that there was a prima facie case and defendant has a case to answer.

8.As of his right, the defendant elected to give evidence but called no further witness.

9.Defendant is a Form 8 holder and he came to Hong Kong in October 2015 as an asylum seeker.  He did not dispute that he went to UNIQLO in Apm shopping mall at the material time and he told the court that he went there with a male friend called Chien who was also coming from Vietnam.  In court, he was shown photos of both WP1 and WP2 but he denied knowing them at all and said he has not seen them before.  Defendant said he just met Chien one week before the incident as he was a barber by training and he cut Chien’s hair for free and Chien just asked him to hang out with him on that day.  However, according to defendant, when they both entered UNIQLO, they went separate ways inside the shop.  He said he was not paying attention as to whether Chien was wearing on that day or whether he was carrying a purple rucksack or not.  After a while, he could not find Chien in the shop.  Defendant said he stayed inside the shop for about 10 minutes and he did look at the clothes in display but he did not buy anything and left.  He did not know what Chien and others were doing inside the shop and he played no part in the theft of the 4 jumpers.  After he left the shop, he saw Chien was chased by someone.  As he was walking down the escalator, he noticed a lady with a white garment carrying a bag was taking photo of him.  As a natural reaction, he covered his face with his hand. He also heard people shouting and there was people chasing after Chien so he thought there was a fight nearby so he also ran. Later, he was stopped by a stranger who held his arm and once he was released, he started to run away as he could not speak or understand the language and he was scared.  He was finally restrained by someone inside the shopping mall and arrested by PW2.

Analysis of the Evidence

10.Before I came to assess the evidence of this case, I have carefully considered the evidence from both sides and the final submissions made on behalf of both prosecution and defence.  I also reminded myself of the usual but important legal directions.  The burden of proving the case always rests on the prosecution and the defendant does not need to prove his innocence.  The prosecution has to prove its case beyond all reasonable doubts and if what the defendant says is or maybe true, the defendant should be acquitted.  In this case, I was informed that Defendant has a hitherto clear record in Hong Kong which is in his favour in that firstly, I should take his clear record into account when deciding whether to believe his evidence and secondly, it may mean that he is less likely than otherwise might be the case to commit a crime like this.  The prosecution’s case is that defendant committed the theft of the jumpers together with WP1-WP3 inside the shop.  The defence case however is that defendant did not take part in the theft and he had no idea of the crime committed by the others and just happened to be there and came to the shop with one of the wanted persons.  I remind myself that mere presence at the scene of a crime of course is not enough to prove guilt.  However, where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a join plan or agreement to commit the offence, they are each guilty. The words ‘plan’ or ‘agreement’ do not mean that there has to be any formality about it.  An agreement to commit an offence may arise on the spur of moment.  Nothing need to be said at all.  It can be made with a nod and a wink, or a knowing look, or it can be inferred from the behaviours of the parties.  The essence of joint responsibility for a criminal offence is that each participant shared a common intention to commit the offence and played his part in it so as to achieve that aim. It follows that if, looking at the case of defendant, I am sure that with a common intention, defendant really took some part in committing the theft, he is guilty as charged.

11.In this case, the prosecution relies heavily on the testimony of PW1 as she gave direct evidence on the activities of the four persons including defendant inside the shop at the material time.  Most importantly, she saw the four of them firstly communicated with each other with gestures and eye signals and later went separately but finally gathered together at the vicinity of the shelf in the men section where WP1 and WP2 had earlier took the jumpers away from the women section and stuffed the garments.  PW1 was able to tell the court that she saw defendant and WP1 both placed the jumpers inside the rucksack carrying by WP3 with WP2, the female, acted as a look out for them. WP3 then carried the rucksack and left the shop without payment.  The rucksack which was retrieved by PW1 from WP3 during the chase contained the four jumpers from the shop and it was later revealed that it was fitted with aluminum foil which explained why the security alarm of the shop was not activated when WP3 left the shop.  These evidence, if accepted, even without more, would already be a clear and cogent evidence that there was a joint enterprise and there was also a common dishonest intention of these four persons to steal the jumpers from the UNIQLO shop.  The defence, on the other hand, denied that defendant was ever involved in the theft and submitted that PW1’s evidence is questionable and should not be relied on.

12.The dominant issue of the present therefore revolves around the credibility of PW1.

13.In its submission, the prosecution pointed out that PW1’s evidence is clear on what she saw on the day in question and she was able to take photos of three out of the four persons with her mobile phone by pretending she was speaking on the phone to support her evidence.  Counsel for the defence has queried why PW1 failed to take any photo of the acts of the four persons on the exact moment when the jumpers were put inside the rucksack.

14.PW1 explained that because of the position of the rack and the presence of clothes on the railings, at that time she has to squat down in order to make observation by peeping through the clothes.  As she wanted to have a clearer view of what they were doing, she did not use her mobile phone to take photos at that moment.  Defence counsel submitted that if PW1 said it was better for her to look with her eyes than to take photos, then why did she need to take other photos as well?

15.PW1 had made a total of five witness statements in this case, understandably, the defence also referred to some of the inconsistencies between the statements to attack her credibility :-

(a) PW1 made a mistake of the colour of the clothing of the person carrying a rucksack;

(b) in none of the statements did PW1 mention that the man and female inside the shop (WP1-WP2) was making gestures and eye signals to the defendant and the man with purple rucksack (WP3);

(c) PW1 never mentioned that WP3 turned around to allow the jumpers to be place inside the rucksack;

(d) PW1 agreed that her first statement was wrong where she mentioned that both the defendant and WP3 left the shop together;

(e) PW1’s first statement was very brief but in the second statement, she was able to give a substantial amount of details. She said it was only after she had looked at the photo and video on the phone that she was able to put the details down. In her third statement, she stated that it was after the police had taken her to Apm that she was able to provide more details of the route of the chase.

(f) PW1 was unable to give descriptions of the dresses and faces of the male and female inside the shop and it shows that her evidence is highly questionable as to what she was able to observe and what was happening in side.

16.The defence also submitted that the court can only rely on the materials before the court and any evidence PW1 gave where she made reference to further photos/videos should be disregarded.

17.Finally, it was pointed out that PW1 had clearly made a mistake when she claimed that defendant was running in photos as depicted in P1 (29)-(31) when he can be seen In the CCTV video footage as only walking in a normal pace.

18.I have carefully considered these submissions in the round. In my judgment, many of the criticisms made by the defence were unfair and unfounded. I can see that PW1 has already tried her best to do her job under the difficult circumstances.  She had a suspicion and she had to keep an eye on what was happening and going on with these four suspects.  Of course, it would have been ideal if she was also able to take a photo and captured the exact moment when defendant and WP1 placed the jumpers inside the rucksack but the fact that she was unable to do so however does not in any way undermine her general credibility. I heard her explanation on her failure to take photo under cross-examination and I found her answers and explanations totally reasonable and therefore the submission by the defence on this point is wholly unjustified.

19.As to the discrepancies relied on by the defence, it can be seen that those were but minor inconsistencies such as colours of the clothing worn by a particular suspect. The fact that she failed to mention a particular act of a suspect in great detail in the statement was something only natural and also totally expected when there were altogether 4 suspects and therefore so many details involved in a pro-longed observation.  In any event, I can see that PW1 was a diligent and meticulous security officer and she had also used the photos or videos taken during the incident and stored in her mobile phone as an aide memoir to assist her memory. PW1 was not at all embarrassed in admitting making mistakes in her memory of the character or the details of the chasing and she was most willing to amend those mistakes by offering to make further statement to the police to assist investigation.  I do not of course have any opportunity to view the other photos or videos in PW1’s mobile phone that was not produced in the trial.  However, I totally accept PW1’s evidence that she took many photos and even videos of the suspects in the course of the incident. The fact that she was able to show me in court the photo stored in her mobile phone of defendant covering his face with his hand when he saw her on the escalator (Exh. P8) after being challenged by defence counsel during cross-examination already supported her evidence.

20.In fact, I could do no better than to refer to the following passage by Stock J (as he then was) regarding the more realistic approach to inconsistencies in the often-cited case of R v Kwong Wing On and Another (09/08/1996, HCMA 574/1996):

“12. Pausing at this juncture, I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

21.It was mentioned in the case that there is a great danger of losing sight of the wood for the trees if the appellant had focused too much on inconsistencies and I judged that this is exactly what happened in the submissions in this case as advanced by the defence counsel.

22.I have the opportunity of seeing and hearing both PW1 and defendant giving their evidence in court.  All in all, I found PW1 an honest and truthful witness whose evidence I can rely.  The evidence of the defendant, on the other hand, does not has any ring of truth and was also inherently impossible.  Mere presence of defendant in the shop together with the other wanted persons at the time of the theft of course is not sufficient to connect him with the joint enterprise of theft. It may be easy for defendant to claim that he had no idea of what was going on inside the shop when Chien suddenly went his own way to steal the jumpers with the others but as it was obviously a premeditated shop theft (as evidenced by the presence of a rucksack fitted with tinfoil carried by Chien), it just makes no sense at all that Chien would still see fit to invite defendant, a casual acquaintance whom he only knew for just a few days, to come along with him to go to UNIQLO to steal things with the others.  Why Chien would be bother to ask defendant to hang out with him if he really had no part to play at all? As it turned out, Chien was seen leaving the shop alone first without attempting to look for defendant at all. There was also no good reason why defendant and Chien had to go separate ways once entering the shop if they were really hanging out together according to his evidence. The truth as I found is that defendant was simply not telling the truth here and what was happened inside the shop was exactly as described by PW1.  Defendant and Chien both entered the shop after exchanging gestures and eye-signals with WP1 and WP2 and the four of them subsequently moved to the shelf where the jumpers were stuffed.  Defendant took part in the theft by retrieving the jumpers and put them inside the rucksack together with WP1 carried by Chien or WP3 on his shoulder.  It maybe that PW1 was not entirely correct when she described that defendant was running when she first followed him on L3 after WP3 has gone away.  Even if defendant was not running in the first place, it was only because he was not aware that he was being chased by anyone or he would not want to alert the other passerby. In any event, defendant did run away later when PW1 chased after him and shouted for help to stop him.  Of course defendant explained that he covered his face by his hand only out of natural reaction and he later went away as he thought there was a fight nearby and he was scared.  I have to accept that there may be a language barrier and as a foreigner, defendant may not be able to understand what was said and therefore what was going on and therefore his running away, without more, cannot be taken as a realization of guilt.  In normal circumstances, I am sure there are many innocent reasons why a defendant like him had acted this way.  However, in this case, as I am sure so that I find that PW1 was telling the court the truth that defendant had earlier committed theft with others inside the shop, I have no doubt that defendant did not cover his face to PW1 just because of natural reaction and I am also sure he did not run away just because he was scared and did not know what was going on.  His conducts must be explained and seen in light of the crime he had committed earlier in the shop with the others.

Conclusion

23.Based on the above reasons, I find the prosecution has proved the case beyond all reasonable doubt and therefore defendant is convicted as charged accordingly.