HKSAR v. Pang Ho Yin, Patrick

DCCC 1111/2017

[2018] HKDC 1174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1111 OF 2017

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REASONS FOR VERDICT

1.D1 pleads not guilty to two charges of handling stolen goods, contrary to section 24 of the Theft Ordinance[1].

Introduction

2.The case concerns two stolen motorcycles.  Motorcycle KC 9208 which was stolen between 22 April and 23 April 2017 and motorcycle SV 3849 which was stolen on 18 June 2017. 

3.The particulars of the charges allege that on 13 July 2017 the defendant dishonestly undertook or assisted in the retention, removal, disposal or realization of the two motorcycles for the benefit of another, knowing or believing the motorcycles were stolen. 

4.On 13 July 2017 PC 5818 saw D1 at the loading area of Po Tin Estate holding a screwdriver and doing something to the storage box of a red motorcycle bearing the registration number plate NF 9346.  A black motorcycle bearing the registration number plate GR 7511 was parked behind the red motorcycle.

5.PC 5818 intercepted D1 who told him that the motorcycles belonged to “Ah Cheong” who asked him to remove the storage box of the red motorcycle and replace the battery from the black motorcycle with the battery from the red motorcycle because the battery of the black motorcycle was flat.  

6.PC 5818 then checked the vehicle licences of the two motorcycles and discovered that the chassis numbers on the motorcycles were different to the chassis numbers on the vehicle licences and were for different motorcycles, namely KC 9208 and SV 3849.

7.The main issue is whether the prosecution have proved beyond reasonable doubt that D1 knew or believed that the motorcycles were stolen.  

8.The prosecution case is that from the circumstances of D1’s arrest and the condition of the two motorcycles, the only inference to draw is that D1 knew or believed that the motorcycles were stolen. 

9.The defence rely on the explanation given to the police and submit that the prosecution has failed to prove D1 knew or believed that the motorcycles were stolen. 

Evidence

10.The entire prosecution case was admitted pursuant to section 65C of the Criminal Procedure Ordinance (exhibit P4)[2]. No witnesses were called. 

11.D1 elected not to give evidence.  No witnesses were called on his behalf.  No adverse inference is drawn against D1 for remaining silent.  That is his right.  This proves nothing one way or the other.  

12.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  D1 has nothing to prove.  I direct myself that I must be sure of the guilt of D1 before I can convict, each charge being considered separately.  On the other hand, if the court thinks that the defence case is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and D1 entitled to be acquitted.

13.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against D1 as well as one in his favour the adverse inference cannot be drawn.  

14.I have carefully considered all the evidence and the submissions of Mr McGuinniety and Ms Chow. 

Theft of KC 9208 and SV 3849

15.Admitted in evidence is that motorcycle KC 9208 was stolen between 22 April and 23 April 2017 and motorcycle SV 3849 was stolen on 18 June 2017[3].  Admitted in evidence is that on 29 August 2018 D2 pleaded guilty to stealing motorcycle KC 9208 on a day unknown between 22 April and 23 April 2017 (charge 5) and motorcycle SV 3849 on 18 June 2017 (charge 7)[4].

Handling

16.Admitted in evidence is that at around 16:35 hours on 13 July 2017 PC 5818 saw D1 holding a screwdriver in his right hand and was doing something to the storage box of a red motorcycle bearing registration number NF 9346.  A black motorcycle with registration number GR 7511 was parked behind the red motorcycle[5].

17.Admitted in evidence are still photographs (exhibit P2) taken from CCTV footage of the loading area of Po Tin Estate from 1500 hours to 1635 hours on 13 July 2017[6].  Photographs 1 - 4 show D1 driving the black motorcycle into the loading area; alighting from the motorcycle and then leaving the loading area; and photographs 26 - 29 show D1 driving the red motorcycle inside the loading area; parking the motorcycle and working on the motorcycle[7].

18.Admitted in evidence is that PC 5818 checked the vehicle licences of the two motorcycles and discovered that the chassis numbers on the motorcycles were different to the chassis numbers on the vehicle licences and were for different motorcycles, namely KC 9208 and SV 3849[8].

19.Admitted in evidence is that on 19 July 2017 the owner of motorcycle SV 3849 positively identified the red motorcycle was his motorcycle[9] and on 21 July 2017 the owner of motorcycle KC 9208 positively identified the black motorcycle was his motorcycle[10].

20.On this evidence I am satisfied that D1 handled both motorcycles.

Knowing or believing the motorcycles were stolen

21.There is no direct evidence that D1 knew or believed the motorcycles were stolen. 

Arrest of D1

22.Admitted in evidence is that D1 told PC 5818 that the two motorcycles belonged to Ah Cheong who asked him to remove the storage box of the red motorcycle and replace the battery of the black motorcycle with the battery from the red motorcycle as the battery of the black motorcycle was flat[11].

23.Also admitted in evidence is that under caution for theft of the motorcycles D1 repeated, inter alia, that the motorcycles belonged to Ah Cheong and that he was asked to remove a storage box and change the batteries and said that he did not steal any vehicle[12].

24.I have considered the explanations given by D1 to the police in accordance with the principles in R v Sharp[13].

Circumstantial evidence

25.The circumstantial evidence from which the prosecution asks the court to draw the inference D1 knew the motorcycles were stolen are (1) the location where D1 was arrested; (2) a broken key was found in the ignition switch of the black motorcycle; (3) the ignition switch of both vehicles was prized; (4) the black motorcycle had been resprayed, the original colour being yellow; and (5) two different vehicle licences were found on the red motorcycle. 

26.Mr McGuinniety submits that it is no coincidence both motorcycles were stolen and that on the totality of the evidence the only reasonable inference to draw is that D1 knew or believed both motorcycles were stolen and that D1’s explanation that he was helping out his friend lacks credibility there being no evidence before the court that D1 worked in a garage.

The location where D1 was arrested

27.Mr McGuinniety submits that the loading area was not a legitimate work place where one would expect repairs to be carried out but a random location which lends substance to the inference of guilt. 

28.Whilst the loading area is clearly not a place one would expect repairs to a car or motorcycle to be carried out thereby raising suspicion, I agree with Ms Chow that what D1 was asked to do, namely remove a storage box and switch the batteries, were simple tasks which did not require the motorcycles to be taken to a garage[14].

The black motorcycle (V3)

29.Admitted in evidence is PC 5818 removed the key from the ignition of the black motorcycle which he found to be broken and incomplete[15]; the ignition switch was prized and the yellow oil tank had been sprayed black[16]. 

30.Photograph P3(12) shows the key inserted in the ignition switch.  The key has not been produced and no photograph shows the extent of the prizing of the ignition switch, of what was clearly an old motorcycle, from which the court can assess whether the prizing of the ignition switch was so obvious to arouse suspicion.

31. Photograph P3(10) and the still photograph P2(1) show the black colour of the oil tank. Although there appears to be some marks, it is simply not possible to say from the photographs that the oil tank was obviously sprayed from yellow to black thereby raising suspicion.

The red motorcycle (V4)

32.Admitted in evidence is that the ignition switch was prized and that the motorcycle had two different vehicle licences[17].

33.The correct vehicle licence shown in photograph P3(7) states the year of manufacture was 1996 making the motorcycle over twenty years old.  While photograph P3(6) shows signs of the ignition switch being prized, from the photograph it is difficult to assess whether the prizing of the ignition switch, of a very old motorcycle, was so obvious to arouse suspicion. 

34.If the two different vehicle licences were both placed in conspicuous parts of the motorcycle, obvious to anyone handling the motorcycle, this may well lead to the court drawing the inference of guilty knowledge.

35.Photograph P3(7) shows the genuine vehicle licence is placed in a tube and does not appear to be in a conspicuous part of the motorcycle.  No other photograph shows this position and therefore it is not possible to say that the vehicle licence is in a conspicuous part of the motorcycle obvious to anyone handling the motorcycle. 

36.In addition, if the genuine vehicle licence had been in a conspicuous place then no doubt the thief would have removed the genuine licence when putting the false licence and number plate on the back of the motorcycle.   

37.The admitted evidence that PC 5818 saw D1 holding a screwdriver in his right hand and doing something to the storage box of the red motorcycle[18] and that the motorcycles had been parked in the Po Tin Estate prior to D1 driving them into the Po Tin Estate loading area[19] is consistent with D1’s explanation that he was only removing the storage box of the red motorcycle and switching the batteries.  Further, no evidence is adduced to show that the battery of the black motorcycle was not flat.  In the circumstances I find I cannot rule out that what D1 told the police may be true.

38.I agree with Ms Chow that the black motorcycle having been stolen over two months before D1 handled the motorcycle and the red motorcycle having been stolen twenty-five days before D1 handled the motorcycle, the court cannot rely on recent possession[20].

39.I am satisfied the circumstantial evidence relied on by the prosecution points to no more than suspicion that D1 knew or believed the motorcycles were stolen. 

40.The benefit of the doubt is given to D1 and he is acquitted of both charges.