HKSAR v. Aviles Zenaida Soriano and Others

DCCC 591/2018

[2019] HKDC 570

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 591 OF 2018

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REASONS FOR VERDICT

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1.The defendants plead not guilty to one joint charge of attempted theft, contrary to section 9 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2].

2.The particulars of the charge read as follows:

“AVILES Zenaida Soriano, LINAMBOS Rasim Darunday, GERODIAS Arlene Cuento, CAMACHO Manuelito Milla and TAGALO Delia Neri, on the 24th day of April, 2018, at Escalator No. E3, MTR Central Station, Central, in Hong Kong, attempted to steal from KO Yuri.”

Prosecution case

3.The prosecution case in summary is that the defendants, all visitors from the Philippines, were residing in the same Guest House in Yau Ma Tei.  On the morning of 24 April 2018 PC 14614 first saw D1, D2, D3 and D5 in Wanchai MTR station paying attention to people going up and down the escalators.  D1, D2, D3 and D5 walked to Gresson Street where they took a tram to Central.  On the tram PC 14614 saw D1, D2, D3 and D5 talk to D4.  The five defendants alighted at Bank Street in Central where they separated with D2 and D5 walking to World-Wide Plaza.   

4.When D2 and D5 walked out from World-Wide Plaza they chatted on the footbridge where they were joined by D1, D3 and D4.  The five defendants then walked to the Central MTR station and purchased tickets in the concourse.  

5.At this stage PC 14614 handed over the observation to SPC 53491.  When the defendants were about to go down the escalator to platforms 1 and 2, D2 pointed out a Korean couple Ko Yuri and Kim Minchul.  D3 and D4 walked past the Korean couple and stood at the top of the escalator without going down.  When the Korean couple reached the escalator D3 and D4 started to go down followed by the Korean couple, D1, D5 and D2.  While travelling down the escalator D2 and D5 kept looking back. 

6.When D3 and D4 reached the bottom of the escalator they blocked the way of the Korean couple at which time D1 unzipped Ko Yuri’s backpack and took out a black wallet.  The wallet was attached to the backpack by a strap and therefore could not be removed.  D1 let go of the wallet.  The defendants then boarded a train where they were arrested. 

Defence case

7.In summary the defence case is that the defendants were going from the guesthouse in Jordan to World-Wide Plaza in Central to eat Filipino food but lost their way on the MTR and arrived in Wanchai.  The defendants then made their way to Central by tram. 

8.The defendants were not acting together to steal and no one attempted to steal the wallet from Ko Yuri’s backpack.  Specifically, D1 did not unzip the backpack and take out the wallet; D2 did not point out the Korean couple; D3 and D4 did not walk right in front of the Korean couple and did not block their way when reaching the bottom of the escalator and D2 and D5 did not look back while travelling down the escalator. 

Evidence

9.The prosecution called three witnesses on the list of witnesses attached to the prosecution opening: PC 14614 (PW1), SPC 53491 (PW2) and WPC 8644 (PW3) who made enquiries of Ko Yuri and Kim Minchul.  Ko Yuri and Kim Minchul were not called[3].  PC 8623, the arresting officer of D4, was tendered for cross-examination[4]. 

10.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[5], including the arrest of D1, D2, D3 and D4[6]; photographs taken of Ko Yuri and her backpack[7]; the defendants resided at the Southern Guest House[8], and the dates the defendants entered Hong Kong[9]. I will refer to the admitted evidence as I review the evidence.

11.D2 elected to give evidence.  D1, D3, D4 and D5 elected not to give evidence.  No witnesses were called.  No adverse inference is drawn against D1, D3, D4 and D5 for remaining silent.  That is their right.  This proves nothing one way or the other.  This does not establish their guilt. 

12.Admitted in evidence are the replies of D1, D2, D3 and D4 given in records of interview[10].    

13.Admitted in evidence is that D2, D3 and D4 have clear records and that D5 has a clear record in Hong Kong[11]. Admitted in evidence is that D1 has one conviction in 1996[12].  I direct myself as to good character of all defendants in accordance with the decision in HKSAR v Tang Siu Man[13] as applied in HKSAR v Mohammed Saleem (No.2)[14].

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

15.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 a defendant as well as one in his favour the adverse inference cannot be drawn.

Prosecution evidence

Police observations

PC 14614 (PW1)[15]

16.In summary PC 14614 testified that at 0950 hours on 24 April 2018 he was on duty in plain clothes in the paid area of the concourse of Wanchai MTR station conducting anti-crime patrol.  When PC 14614 walked near the escalator leading down to the platforms he saw three Filipino females and one Filipino male, standing separately in the paid area of the concourse, paying attention to people going up and down the escalators.  This caused PC 14614 to pay attention on them and to inform his colleagues who were also patrolling in the station of his suspicion. 

17.PC 14614 described the appearance of the four persons:

The male was 1.7 m tall; strong build; wearing a dark red top (“date red”), a brown lower garment, a beige cap and carrying a black sling bag.  PC 14614 also described the cap as white (“M1”)[16];

The first female was 1.55 m tall; had short black hair; a mole in the middle of her eyebrows; wearing a black top with mid length sleeves, a black lower garment and carrying a brown sling bag (“F1”);

The second female was around 1.55 m tall; fat build; had brown/red long hair, a mole on her left side; wearing a dark coloured jacket, a black and white top, blue coloured trousers and carrying a blue hand bag (“F2”); and

The third female was also about 1.55 m tall; fat build; wearing a blue top, green trousers and also carrying a blue hand bag (“F3”).

18.PC 14614 observed the four persons from about 6 feet.  The lighting in the station was clear and bright.  After about ten seconds the four persons took the escalator down to the platform.  PC 14614 followed them down the escalator.   

19.The four persons stood apart on the platform looking in the direction of the escalators while observing people travelling up and down the escalators.  Not long after the four persons walked hastily and took the escalator back up to the concourse. After informing his colleagues PC 14614 followed the four persons.  The four persons then left the station via exit B.  In cross-examination PC 14614 said he followed the four persons because his suspicion had not been relieved[17].

20.The four persons walked along Hennessy road towards Gresson Street, talking to each other on the way.  In cross-examination PC 14614 said he could not understand what they were talking about[18].

21.At Gresson Street tram stop the four persons stood separately.  When a tram arrived all four boarded the tram.  PC 14614 followed and boarded the tram as well.  Suddenly the four persons spoke to another Filipino male on the tram. PC 14614 described this male as about 1.6 m tall; strong build; hair dyed brown and wearing a green and white T-shirt with O2 printed on the T-shirt (“M2”).

22.The five persons alighted the tram at Bank Street in Central.  Three persons alighted first, M2, F1 and F2.  Many people alighted at the stop whereby M1 and F3 were the last to alight followed by PC 14614.  PC 14614 did not see where M2, F1 and F2 went.

23.M1 and F3 walked to World-Wide Plaza[19], talking to each other on the way.  PC 14614 followed M1 and F3 up to the time they entered the shopping mall of World-Wide Plaza.  In cross-examination PC 14614 agreed that there were lots of shops and restaurants popular with Filipinos in World-Wide Plaza[20].

24.PC 14614 was instructed by Sgt 53154 to wait outside World-Wide Plaza on the footbridge on Connaught Road.  At 1030 hours while waiting on the footbridge PC 14614 saw M1 and F3 walk out of the shopping mall and chat on the footbridge.  PC 14614 alerted his colleagues and asked for reinforcement from officers on Kowloon side.  M2, F1 and F2 joined M1 and F3.  The five persons chatted together and then took the escalator down to the ground and entered Central MTR station. 

25.PC 14614 followed them into the station where he saw them approaching the ticket machines intending to buy tickets.  In cross-examination PC 14614 said he did not see M1 go to the Customer Service Counter[21].

26.While they were buying tickets PC 14614’s colleagues arrived, including SPC 53491 (PW2).  PC 14614 briefed SPC 53491 who took over the observation of the five persons.  After handing over observation to SPC 53491, PC 14614 then made his way round a pillar and concealed himself in nearby shops.  

SPC 53491 (PW2)

27.In summary SPC 53491 testified that at 1030 hours on 24 April 2018 he was on duty in plain clothes when he received a message from PC 14614 as a result of which he immediately rushed to give assistance to PC 14614. 

28.SPC 53491 together with PC 54153 and WPC 11254 went to the ABCD concourse of the Central MTR station arriving at about 1045 hours.  After waiting a while SPC 53491 ambushed nearby to observe discreetly.  At about 1050 hours PC 14614 approached and indicated about 7-8 m away two Filipino males and three Filipino females buying tickets.  Apart from people passing by there were no obstructions to SPC 53491’s sight.  The lighting was bright.

29.SPC 53491 described the appearance of the five persons:

The first person: female; 1.5 m tall; fat build; a mole between her eyebrows; black hair; wearing a black T shirt with mid length sleeves, black trousers and carrying a brown bag  (“P1”)[22];

The second person: male, about 1.7 m tall; very strong build; wearing a red T shirt (“date red”), brown trousers and carrying a black sling bag[23] (“P2”).  Later in evidence SPC 53491 mentioned that P2 was also wearing a beige cap;

The third person: female; around 1.6 m tall; fat build; wearing a black jacket with a black and white top underneath, blue jeans and carrying a bag (“P3”);

The fourth person: male; about 1.7 m tall; strong build; wearing a green and white T-shirt with O2 printed on the T-shirt, blue jeans and carrying a bag (“P4”);

The fifth person: female; about 1.6 m tall; fat build; wearing glasses, a blue shirt, green trousers and carrying a bag (“P5”).

30.After buying the tickets the five persons entered the gate and took the escalator down to platform 3.  SPC 53491 followed the five persons and at the same time informed his colleagues the five persons were going down the escalator.  At the bottom of the escalator the five persons turned left and walked slowly towards the direction of platforms 1 & 2 while talking to each other.  SPC 53491 continued to follow them from about 3 m away.

31.PC 14614 also went down the escalator to platform 3 where he again saw the five persons.  PC 14614 maintained a certain distance from them so that he was able to give assistance in the event an arrest was to be made. 

32.In cross-examination PC 14614 said that he did not see the five persons enter the paid area and that he had last observed them buying tickets. After he heard from the beat radio that the five persons had gone downstairs he immediately entered the paid area.  PC 14614 believed this was a few seconds after he handed over observations to SPC 53491[24].

33.In answer to the court  PC 14614 said when he saw the five persons on platform 3 they were walking towards the escalators leading down to platforms 1 & 2 and that he was walking slowly behind them[25].

34.When the five persons almost reached escalator E3, SPC 53491 saw P2 raise his right hand and point at a male and female ahead.  At the same time P2 said something which SPC 53491 could not understand.  The other four looked at P2.  P3 and P4 then overtook the male and the female from their left hand side.   

35.The female was wearing a black top and carrying a backpack and the male was pulling luggage.  SPC 53491 took a brief look at the backpack and noticed that the female’s backpack was zipped closed.  SPC 53491 identified the backpack carried by the lady as the backpack shown in photograph 1, exhibit P1 and that the female carried the backpack in the way as shown in the photograph. 

36.After overtaking the male and the female P3 and P4 stood at the top of the escalator but did not go down.  When the male with the luggage and the female reached the escalator P3 was on the right of the escalator and P4 on the left. The male stood behind P3 and the female behind the male.

37.P3 and P4 then started to go down the escalator followed by the male and the female, P1, P5 and P2.  P3 and P4 were standing on the same step, P3 on the right and P4 on the left.  The male with the luggage stood on the right hand side of the escalator behind P3. 

38.In cross-examination SPC 53491 said that the male did not have to pause when approaching the escalator because the suitcase was on wheels; the male placed the suitcase on his side; this did not block the escalator and that a person of thin build could pass but this would not be easy[26].

39.The female stood behind the male on the right hand side of the escalator.  P1 stood one step behind the female also on the right hand side of the escalator.  P5 stood two steps behind P1 on the left hand side of the escalator.  P2 stood one step behind P5 also on the left hand side of the escalator. 

40.In cross-examination SPC 53491 agreed that there was another person stood next to P5 on the escalator and also another person stood next to P2[27].

41.SPC 53491 immediately followed standing one step behind P2 also on the left hand side of the escalator.  When travelling down the escalator SPC 53491 saw P2 and P5 kept turning their heads back to look. 

42.In cross-examination PC 14614 said he did not see the five persons go down the escalator to platforms 1 & 2[28].

43.SPC 53491 informed his colleagues that it seemed the male and female had been “sandwiched”, which SPC 53491 explained meant that while going down the escalator the male and female were surrounded by P3, P4, P1, P5 and P2. 

44.When P3 and P4 reached the bottom of the escalator they blocked the way of the male and female creating “congestion” at which time P1 unzipped about 10 inches of the female’s backpack, reached into the backpack with her right hand and took out a black wallet.  The wallet was connected to the backpack by a strap (“string”). P1 immediately withdrew her hand. 

45.The female suddenly pulled her backpack in front of her.  The wallet was left hanging in the air.  SPC 53491 said photograph 2, exhibit P1 shows how the wallet was left hanging in the air. 

46.In cross-examination SPC 53491 said that because the way of the male with the suitcase was blocked he was about to fall over.  SPC 53491 explained that the male lost his balance a bit and was leaning forward and similarly the female also lost her balance and leaned forward and P5, P2 and the other two civilians on the escalator also had movements of leaning forward.  SPC 53491 also felt as though he tripped a bit on the escalator but did not lose balance and fall over, only leaning forward.  SPC 53491 agreed that he did not mention in his witness statement about the male and female and the people behind them almost falling over or leaning forward and said there was no reason in particular for not mentioning this in his witness statement[29].

47.SPC 53491 disagreed that when D4 arrived at the bottom of the escalator D4 did not come to a complete stand still but continued to walk slowly[30].

48.By this time everyone had reached the bottom of the escalator and were on the platform.  SPC 53491 informed his colleagues that the zip had been opened but nothing could be stolen and said prepare for interception.

49.The male and female boarded the train.  P1 and P3 pointed at the male and female and also boarded the train followed by P2, P4 and P5.  SPC 53491 followed and also boarded the train.  Not long after the train doors closed.

50.In cross-examination SPC 53491 agreed that in his witness statement he did not mention P3 pointing and just said that P1 indicated to P3 by pointing.  When asked whether his evidence was correct or what he wrote in his witness statement SPC 53491 replied that P1 pointed out the male and female who had just boarded the train to P3.  SPC 53491 agreed that P1 pointed in the same direction as the train[31]. 

Arrest 

51.When PC 14614 was on platform 3 he heard from the beat radio SPC 53491 saying “it had been unzipped, it had been stolen”.  PC 14614 therefore took the escalator to platforms 1 and 2 where he saw his team members had boarded a train.  PC 14614 also boarded the train at about carriage 6.

52.In answer to the court PC 14614 said when he heard the message on the beat radio he could not see the five persons. 

53.After the train set off SPC 53491 notified his colleagues on the beat radio that all the persons were here and could be intercepted.  SPC 53491 saw SPC 54153 taking control of P1.  In court SPC 53491 identified the person controlled by SPC 54153 was D1.

54.Admitted in evidence is that SPC 54153 arrested D1 inside carriage 6[32].

55.SPC 53491 also told WPC 11254 about P3.  WPC 11254 controlled P3.  In court SPC 53491 identified the person controlled by WPC 11254 was D3.

56.Admitted in evidence is that WPC 11254 arrested D3 inside carriage 6[33].

57.After SPC 53491 notified his colleagues that persons could be intercepted PC 14614 immediately intercepted the female nearest to him who he had seen wearing the blue top in the Wanchai MTR station (F3) and declared arrest.  In court PC 14614 identified the person he arrested was D5.  In cross-examination PC 14614 disagreed another officer arrested D5[34].

58.SPC 53491 saw PC 14614 controlling P5 and went over to render assistance.  In court SPC 53491 identified the person controlled by PC 14614 was D5.  In cross-examination SPC 53491 disagreed only one police officer was involved in controlling D5[35].

59.PC 14614 saw that PC 14508, who was in the next compartment, needed assistance. PC 14614 therefore handed over D5 for SPC 53491 to guard while he went to assist PC 14508 to arrest the male he had seen in the Wanchai MTR station wearing a cap (M1).  SPC 53491 also witnessed PC 14508 control P2. 

60.In court PC 14614 identified the person PC 14508 arrested was D2.  SPC 53491 also identified in court the person controlled by PC 14508 was D2.

61.Admitted in evidence is that PC 14508 arrested D2 inside carriage 6[36].

62.When the train arrived in Admiralty station PC 14508 and PC 14614 took D2 out of the carriage and joined the other team members on the platform where PC14614 took over custody of D5 from SPC 53491.  

63.SPC 53491 saw that P4 intended to leave the train so he told PC 8623 to arrest him. In court SPC 53491 identified the person arrested by PC 8623 was D4. 

64.Admitted in evidence is that PC 8623 arrested D4 on the platform of Admiralty station[37].

65.In cross-examination PC 8623 disagreed that D4 was standing unattended on the platform for at least two minutes before he was arrested[38].  PC 8623 said that when they brought the arrested persons out of the train he saw D4 immediately walk out hastily and that SPC 53491 also immediately informed him that D4 was part of this so he immediately approached D4 to effect arrest.  PC 8623 explained that he did not arrest D4 on the train because he needed to help WPC 11254 arrest AP3 who put up a struggle. 

66.On the platform PC 14614 saw that PC 8623 had arrested the male he had seen on the tram and in the Central MTR station (M2).  In court PC 14614 identified the person arrested by PC 8623 was D4.  In cross-examination PC 14614 said that he did not see D4 being arrested[39].

67.On the platform PC 14614 also saw that SPC 54153 and WPC 11254 had arrested the other two females he had seen in the Wanchai MTR station, on the tram and in the Central MTR station.  In court PC 14614 identified the person arrested by SPC 54153 was D1 and the person arrested by WPC 11254 was D3.  In answer to the court PC 14614 said that the female arrested by SPC 54153 was the female wearing a black top (F1) and the female arrested by WPC 11254 was the female wearing a black and white top (F2). 

68.In cross-examination PC 14614 agreed that he did not mention the arrest of D3 in his witness statement[40]. When Mr Sherry put that he did not see the arrest of D3 PC 14614 replied that he did not see with his own eyes WPC 11254 declare arrest on D3. 

69.The police officers then took the arrested persons to the police guard post where they stayed between 1109 and 1300 hours at which time they were taken to the police station. 

Ko Yuri

70.At 1057 hours WPC 8644 (PW3) boarded the train.  After the train doors closed SPC 53491 pointed out a male and a female and asked WPC 8644 to make enquiry whether the female had lost anything.  WPC 8644 approached the male and female and revealed her identity.

71.When the train arrived at Admiralty WPC 8644 took the male and female out of the train to a conference room in the station.  Due to difficulty in communicating, WPC 8644 used google translate.  WPC 8644 checked their passports.  Both the male and female were Korean.  The name on the passports were Ko Yuri (female) and Kim Minchul (male).

72.Admitted in evidence are photographs of Ko Yuri and her backpack and wallet[41].  WPC 8644 identified the backpack and wallet shown in the photographs was the backpack and wallet of Ko Yuri.  WPC 8644 said she saw the wallet inside the conference room at which time the wallet was inside the backpack.  WPC 8644 said the photographs show the clothes worn by Ko Yuri. 

73.In cross-examination WPC 8644 said the male had a 27 inch suitcase with wheels[42].

Defence evidence

D2

74.In summary D2, aged 35, testified that he came to Hong Kong on 17 April 2018. This was the first time D2 visited Hong Kong.  The next day D2 went by ferry to Macau.  The defendant went to Macau to see his girlfriend who was applying for a job and a care giving course with Caritas.

75.D2 returned to Hong Kong by ferry on the evening of 22 April 2018 to look for an agency to obtain a visa to go to Canada.  The defendant intended to return to the Philippines by the 25 April.  

76.At 2226 hours. D2 arrived at the ferry terminal in Tsim Sha Tsui from where he took a taxi [43].  D2 told the taxi driver to take him to a hotel that was not too expensive.  The taxi driver drove D2 to Jordan.  D2 alighted from the taxi and looked for a hotel.

77.When D2 was asking other Filipinos where he could stay D4 approached and asked D2 if he was Filipino.  D2 replied yes and started to have a conversation with D4. D2 asked D4 where he could find a hotel to stay which was not too expensive. D4 offered to share his room with D2 and split the cost with D2.  D2 agreed and went to stay at the Southern Guest House [44].

78.At the time D4 was with two ladies. This was the first time D2 had met D4.  In cross-examination D2 said he only knew D1 for two days between 22 and 24 April 2018 and that he had never met her before and had never met D3, D4 or D5 before[45].

23 April 2018

79.The next morning D4 asked D2 if he wanted to go eat Filipino food for breakfast in Central.  D2 agreed and went together with D1, D3, D4 and D5.  After eating breakfast and lunch in Central the defendants went back to Jordan. 

80.In cross-examination by Ms Sujanani for the prosecution D2 said that the restaurant was in World-Wide Plaza in Central; that they went there by MTR and that he remembered switching trains but not where he switched trains because he just followed the other defendants.  When Ms Sujanani put that there was no need to change train when travelling from Jordan to Central D2 replied that he did not know anything about that because he had just arrived and only remembered that when they exited the train they were already in Central and then it was World-Wide Plaza.

81.In answer to the court D2 said they went back to Jordan also by MTR from Central station and in answer to Ms Sujanani said that he remembered that they again changed trains once but did not know which station because he was just following the other defendants and did not look.    

82.After arriving in Jordan D2 went with D4 to buy some bags for his nephews and nieces who were students.  D2 bought the bags and some shoes.  In the evening D2 went back to the guest house and did a video call to the Philippines to show his nephews and nieces the presents he had bought for them.  D2 said the presents were in his prisoner’s property.

24 April 2018

83.The next morning while D2 was still lying in bed D4 asked him if he wanted to go with them again to the place they had eaten food the day before.  D2 agreed to go. 

84.From the guest house D2 together with D1, D3, D4 and D5 went to the MTR station.  D2 did not know where they were going and did not know exactly which station they were supposed to go to.  D4 told D2 that D1 would take them to Central because she was the one who knew how to get there. 

85.The defendants exited the train at Wanchai station.  D2 did not know why they went to Wanchai station and just followed the other defendants because he did not know the way.

86.On exiting the train there were many people around.  D4 disappeared.  D2 followed the three ladies up the escalator and stopped when the three ladies stopped.  They tried to figure out whether someone had been delayed somewhere.  When the three ladies went back down the escalator D2 again followed the ladies.  D2 leaned against a pillar and looked at the escalator to figure out if he will see D4.

87.The three ladies then went back up the escalator and walked towards the exit of the station.  D2 followed wherever they went.  After leaving the station D2 saw D4 again. 

88.In cross-examination by Ms Sujanani, for the prosecution, D2 said that they all had mobile phones; he did not call D4 asking where he was because the three ladies were the ones who tried to contact D4; he just followed the three ladies and that he saw D4 outside the train station.  In answer to the court D2 said that he saw D4 get off the train at Wanchai but did not see him again until after he left the station[46].

89.In cross-examination by Mr Raffell, on behalf of D1, D2 agreed that when they were all in Wanchai they were basically lost; he was not clear how he ended up in Wanchai; the three ladies also did not know where to go; and he got on the MTR at Jordan but could not remember anymore whether he got off at Admiralty[47]. 

90.The five of them then caught the tram to Central.  In cross-examination D2 agreed that they got on a tram because someone said that the tram goes close to World-Wide Plaza and agreed that their intention was just to go to World-Wide Plaza to get something to eat [48].

91.D2 alighted the tram with D5.  D2 did not see D1, D3 and D4 alight the tram.  After alighting the tram D2 and D5 walked to World-Wide Plaza because it was very near.  D2 led the way because D5 was fat and walked slowly.  D2 said he knew the way to go because he remembered where he went the day before.

92.In cross-examination by Ms Sujanani for the prosecution, D2 said that he came down from the tram at World-Wide Plaza and that he led the way because he could already see World-Wide Plaza in front because there was a large sign with World-Wide Plaza on.  At the end of cross-examination D2 disagreed when Ms Sujanani put that he did not get off the tram opposite World-Wide Plaza.

93.In World-Wide Plaza D2 and D5 went to the same restaurant they had eaten at the day before. After a few minutes D1, D3 and D4 arrived to eat at the restaurant.  After eating D2 left the others and spoke to some Filipinos in World-Wide Plaza asking them if they knew an agency where he could obtain a visa for Canada.  D2 left his phone number and asked them to call him.

94.D4 then called D2 saying he was going back to Jordan.  D2 said he would go with D4.  On arrival in the Central MTR station the others went to a machine to buy a ticket.  D2 did not have the exact money and therefore went to the customer service centre to buy a ticket.  D2 gave $100 but was not given any change.  At the end of his evidence D2 identified the octopus card in his prisoner’s property was the one he bought at that time.

95.D2 then followed D1, D3, D4 and D5 through the turnstiles and onto the escalator. D2 was the last of the five on the escalator.  D2 said he only remembered going down one escalator[49]. D2 said he was just thinking about how to get on the train because he did not want to be separated from the other defendants. 

96.After going down the escalator the five of them went towards a train which had arrived.  D2 intended to get on the train to go to Jordan.  The defendant was told they would get down at the next station because at the next station that was how they would get to Jordan. 

97.D2 rode on the train with the other defendants.  When D2 was arrested he was standing about 7-8 feet from the other defendants.  D2 explained that he had looked for a vacant pole to stand against. 

98.D2 disagreed he pointed to anyone, including the young lady (Ko Yuri); disagreed he looked back while on the escalator and disagreed that he was involved in an attempt to steal from the young lady.

Records of interview

D1

99.Admitted in evidence is that in a record of interview D1 said, “I have nothing to do with this case”[50].

D2

100.Admitted in evidence is that in a record of interview D2 said, “I did not attempt to take something that does not belong to me”[51].

D3

101.Admitted in evidence is that in a record of interview D3 said, “It is not true”[52].

D4

102.Admitted in evidence is that in a record of interview D4 said, “I did not do anything mentioned above.  You can view the recording of closed circuit television.  I really did not do any of these things and did not attempt to steal”[53].

Discussion

103.I have carefully considered all the evidence and the oral and written submissions of Ms Sujanani, Mr Raffell, Mr Marray, Mr Sherry, Mr Stephensonand Mr Tracy. 

104.In considering the evidence, I have used my local knowledge of the location of the Wanchai MTR station; the routes of both the MTR and the tramways and the location of Bank Street and World-Wide Plaza.  All counsel have been given the opportunity of making submissions on whether the court may use this local knowledge[54].

105.I have no hesitation in rejecting D2’s evidence and his statement in a record of interview that he did not attempt to take something that does not belong to him. I do not find D2’s evidence credible, for example I do not find credible D2’s evidence about what happened on 24 April 2018 after he left the guesthouse together with D1, D3, D4 and D5 and took the MTR at Jordan station. 

106.I do not find credible D2’s evidence that they went on the MTR to go to the same restaurant in World-Wide Plaza they had been to the day before; that after boarding the train at Jordan he did not know why they alighted the train at Wanchai; that D4 disappeared when alighting the train at Wanchai; that he simply followed the three ladies and that basically they were lost[55].

107.In cross-examination the defendant said that the day before they went to Central by MTR[56]. World-Wide Plaza is next to an exit of the Central MTR station.  To travel by MTR from Jordan to Central does not require any change of train.  To travel from Jordan to Wanchai requires a change of train at Admiralty.  If the defendants were going to the same restaurant they went to the day before there was no need to go via Wanchai and take a tram to Central. 

108.Further, the tram stop at Gresson Street is not the nearest tram stop to the Wanchai MTR station.  The nearest tram stop is outside exit A3 on Johnston Road.  There is also one stop at Swatow Street before reaching the stop at Gresson Street.  To reach Gresson Street tram stop from Hennessy Road requires a left turn at Fenwick Street and then crossing over Johnston Road to the tram stop near the junction with Gresson Street. 

109.I do not find credible D2’s evidence he next saw D4 outside the MTR station.  I accept the unchallenged evidence of PC 14614 that D1, D2, D3 and D5 walked along Hennessy Road talking to each other on the way and that on the tram they spoke to D4[57].

110.I do not find credible the defendant’s evidence in cross-examination that he alighted the tram where he could see the sign for World-Wide Plaza.  The tram stop outside World-Wide Plaza is on the eastbound track not the westbound track.  The nearest tram stop to World-Wide Plaza westbound is outside the Landmark on Des Voeux Road before the junction with Pedder Street. 

111.I accept the unchallenged evidence of PC 14614 that the defendants alighted at Bank Street which is the tram stop before the stop outside the Landmark. World-Wide Plaza cannot be seen from the Bank Street tram stop.  

112.PC 14614 first saw D1, D2, D3 and D5 in Wanchai MTR station at 0950 hours.  The next time PC 14614 gave was 1030 hours when he saw D2 and D5 come out of World-Wide Plaza.  In the intervening 40 minutes the defendants had been seen by PC 14614 in the Wanchai MTR station; walking along Hennessy Road; taking the tram at Gresson Street; alighting at Bank Street and walking to World-Wide Plaza. 

113.Although PC 14614 did not say how long they spent in the Wanchai MTR station; what time they alighted the tram at Bank Street or how long D2 and D5 spent in World-Wide Plaza before he saw them again, there was clearly little time for the defendants to have a meal in a restaurant. 

114.Mr Marray submits that the observations of PC 14614 in the Wanchai MTR station and on the tram are consistent with D2’s innocent explanation that they had become separated from D4, PC 14614 describing them as flustered[58].  Similar submissions were also made by Mr Raffell, Mr Sherry and Mr Tracy that the observations of PC 14614 were consistent with the defendants being lost[59]. 

115.In cross-examination Mr Raffell referred PC 14614 to his witness statement in which he described the four persons he saw in the MTR as flustered.  PC 14614 disagreed this meant they looked lost or confused.  PC 14614 explained that he meant people were entirely focused on doing something; that their expressions were very uptight and that lost, confused and worried were entirely different.

116.When Mr Raffell asked why he followed them PC 14614 replied that he noticed their behaviour and demeanour was flustered and that they were staring at people going up and down the escalators which aroused his attention. 

117.In cross-examination by Mr Sherry PC 14614 disagreed that when tourists were unfamiliar with a station they would look flustered and disagreed that the four persons he saw in the MTR station were flustered because they were trying to find their way out of the station. 

118.I accept the evidence of PC 14614 as to what he meant when he described D1, D2, D3 and D5 in his witness statement as being flustered and that the actions of the defendants aroused his suspicion whereby he followed the defendants to Central. 

119.I reject D2’s evidence that the defendants went on the MTR to go to the same restaurant in World-Wide Plaza they had been to the day before; that he did not know why they alighted the train at Wanchai; D4 disappeared and that basically they were lost.  I am satisfied D2’s evidence that he was simply following the others and that they were basically lost is entirely contrived to try explain why the defendants went from the Jordan MTR station to the Wanchai MTR station and not direct to the Central MTR station. 

120.I remind myself that the rejection of D2’s evidence is not determinative of the issues in the case.  The defendants have to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. 

121.I am satisfied no weight is to be attached to the statements made in the records of interview by D1, D3 and D4 denying they attempted to steal anything, which denials were not made on oath, have not been repeated on oath and have not been tested by cross-examination. 

Identification of the defendants

Identification by PC 14614

122.Ms Sujanani first applied for a dock identification by PC 14614 of the five persons he had seen at the stage in evidence where PC 14614 described handing over the observation to SPC 53491.  Mr Raffell, Mr Marray, Mr Sherry and Mr Tracy objected on the ground that there had been no identification parade held.  I refused a dock identification at that stage. 

123.Ms Sujanani renewed her application for a dock identification after PC 14614 testified that he had arrested the female nearest to him; assisted PC 14508 to arrest a male; the train had arrived at Admiralty station and all arrested persons were brought to the guard post and later taken to the police station.

124.I initially refused the application without hearing from the defence after which the case was adjourned to the next day.  Overnight I reconsidered the matter and the next morning invited the parties to address me on whether PC 14614 was permitted to make a dock identification of the person he arrested and who he saw arrested bearing in mind the arrest of D1, D2, D3 and D4 was admitted.

125.Mr Tracy representing D5, who in the prosecution opening was the person arrested by PC 14614, was invited to address the court first.  Mr Tracy had no objection to PC 14614 identifying the person he said he arrested.  Mr. Raffell having admitted the arrest of D1 accepted that PC 14614 could identify the persons arrested. Mr Marray and Mr Sherry said they would wait to see how the evidence was adduced by the prosecution.  Mr Stephenson had nothing to add. 

126.Ms Sujanani then adduced further evidence from PC 14614 of the persons arrested[60].

127.As summarised earlier PC 14614 testified that he arrested the female nearest to him who he had first seen in the Wanchai MTR station wearing a blue top (F3).  PC 14614 identified this person as D5. 

128.PC 14614 assisted PC 14508 to arrest the male he had seen in the Wanchai MTR station wearing a cap (M1).   PC 14614 identified this male as D2.  

129.After arriving at Admiralty station PC 14614 saw PC 8623 arrest the male he had seen on the tram and in the Central MTR station (M2).  PC 14614 identified this male as D4. 

130.On the platform PC 14614 also saw that the other two females he had seen in the Wanchai MTR station, on the tram and in the Central MTR station had been arrested.  PC 14614 identified that SPC 54153 had arrested D1 (F1) and WPC 11254 had arrested D3 (F2). 

131.Only Mr Sherry, on behalf of D3, objected to a dock identification by PC 14614 of the person arrested by WPC 11254 on the grounds there had been no identification parade and a dock identification was prejudicial. 

132.I over ruled the objection.  I was satisfied a dock identification was not prejudicial, D3 having admitted that she was arrested by WPC 11254[61]. 

Identification by SPC 53491

133.Ms Sujanani applied for a dock identification by SPC 53491 of the five persons he had seen being controlled and arrested after boarding the train.  Mr Raffell objected to a dock identification on the grounds no identification parade had been held and no satisfactory explanation had been given why no identification parade had been held.  Mr Marray, Mr Sherry, Mr Stephenson and Mr Tracy adopted the objections made by Mr Raffell. 

134.I overruled the objection.  I was satisfied that SPC 53491 could identify the persons he saw arrested and that a dock identification was not prejudicial. D1, D2, D3 and D4 each having admitted that they were arrested[62] and in cross-examination Mr Tracy having put to PC 14614 that D5 was arrested albeit not by PC 14614.

135.As summarised earlier SPC 53491 testified that SPC 54153 controlled D1 (P1); WPC 11254 controlled D3 (P3); PC 14614 controlled D5 (P5); PC 14508 controlled D2 (P2) and PC 8623 arrested D4 (P4) [63].

Were the persons arrested the same persons seen earlier by PC 14614 and SPC 53491?

136.Mr Sherry and Mr Tracy have made further written submissions concerning the identification of the defendants by PC 14614 and SPC 53491.  I have carefully considered these submissions.

137.Mr Sherry submits that PC 14614’s identification of D3 from the dock is unreliable because he did not see the arrest of D3[64] and that even if PC 14614 and SPC 53491 are convinced of their identification of D3 they may still be mistaken, in particular considering the crowded environment in and around escalators and platforms of the MTR and that SPC 53491 only had the group under observation for a few moments before they went on the escalator[65]. 

138.Mr Tracy submits that D5 has not been directly identified as the person 5 referred to by PC 14614 and SPC 53491[66] and PC 14614’s description of the 4th person (F3) could well be based on or “improved” by opportunities to observe D5’s appearance on and after her arrest[67]. 

139.The prosecution case depending on the correctness of the identification of the defendants by PC 14614 and SPC 53491, I direct myself in accordance with the principles established in R v Turnbull[68]. I warn myself of the special need for caution before convicting the defendants in reliance on the evidence of identification. 

140.I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness.  I remind myself that mistakes in recognition of close relatives and friends are sometimes made.    

141.At no time in cross-examination was it ever put to PC 14614 that he was mistaken that the four persons he had first seen in Wanchai MTR station and the fifth person he first saw on the tram were the same persons that were arrested.  Further, the evidence of D2 was that he was together with D1, D3 and D5 in the Wanchai MTR station and that together with D4 they went by tram to Central, albeit he said they met D4 outside the Wanchai MTR station and not on the tram. 

142.Having carefully considered all the circumstances in which the identifications were made, including the environment of the Wanchai MTR station and the tram, I accept the evidence of PC 14614 that the four persons he first saw in the Wanchai MTR station and the fifth person he first saw on the tram were the same persons that were arrested.  The fact that PC 14614 did not actually see the declaration of arrest of D3 does not cause me to doubt this finding.  I accept the evidence of PC 14614 that while on the platform at Admiralty station he saw that D3 had been arrested by WPC 11254[69].

143.I am satisfied so I am sure that PC 14614 has correctly identified the four persons he first saw in the Wanchai MTR station as D1, D2, D3 and D5 and the person he first saw on the tram as D4.  

144.This was not a fleeting glimpse.  PC 14614 observed the four persons he first saw in the Wanchai MTR station (M1, F1, F2 and F3) for approximately forty minutes and the fifth person (M2) after boarding the tram.  I reject the submission PC 14614’s identification was based on or “improved” by opportunities to observe D5’s appearance on and after her arrest. 

145.Similarly, at no time in cross-examination was it ever put to SPC 53491 that he was mistaken that the five persons he first saw in the concourse of the Central MTR station and who he followed onto the train were the same persons that were arrested.  Further, the evidence of D2 was that he went together with D1, D3, D4 and D5 to the Central MTR station and boarded the train. 

146.Having carefully considered all the circumstances in which the identifications were made, including the environment of the Central MTR station, I accept the evidence of SPC 53491 that the five persons he first saw in the concourse of the Central MTR station and who he followed onto the train were the same persons that were arrested. 

147.I am satisfied so I am sure that SPC 53491 has correctly identified the five persons he first saw in the concourse of the Central MTR station as D1, D2, D3, D4 and D5. 

Identification of the acts of each defendant

148.In considering whether the court can safely rely on the identification by PC 14614 and SPC 53491 of what each defendant did, I remind myself even where presence is agreed a full Turnbull direction should be given where a mistaken identification is clearly possible[70].

PC 14614

149.Mr Raffell submits that PC 14614’s evidence in cross-examination that the Wanchai MTR station was not very busy is not credible[71].

150.The relevant cross-examination was as follows:

Q.  Wanchai concourse, MTR station, 9:50, busy, lots of people, Yes?

A.  Not too many people, not too busy. 

Q.  9:50 on a Tuesday morning.  The date the 24 April was a Tuesday was it not?

A.  Yes

Q.  Normal working day, 24 April, Tuesday, it would have been busy at 9:50?

A.  If you are talking about busy it should be before when people were rushing to work.  At 9:50 most people already at work so it was not too busy.

Q.  There were other people around?

A.  There were people around

Q.  You would have had to have other people around otherwise you would have stood out staring at these four people. Unless there were other people around you wouldn’t be able to do that would you? 

Court:  Are you commenting Mr Raffell or asking a question.  He answered your question other people around.  He said yes.

Q.  There must have been a lot of people around so that you could hide? 

A.  Not necessarily.

Q.  But were there? Not necessarily. Were there?

Court:  Were there what

Q.  Lots of other people around?

A.  Yes.

151.In cross-examination when Mr Marray put that in the Wanchai MTR station it is usual for people to gather at the bottom of the escalators because there are so many people they cannot get on the escalator, PC 14614 replied that this depended on whether it was rush hour.   

152.I accept the evidence of PC 14614 that although there were a lot of people around in the Wanchai MTR station it was not too busy at 9:50 a.m., after the morning rush hour. 

153.Mr Raffell also submits that PC 14614’s answer in cross-examination that he was not sure if there were lots of people in the Wanchai MTR station with backpacks is strange and not credible[72].

154.After PC 14614 agreed that there were lots of other people around the cross-examination continued as follows:

Q.  And there were many people who would have been carrying backpacks?

A.  I can’t be sure. 

Q.  You were keeping an eye out for suspected pickpockets?

A.  That was not my major duty.  I was not merely keeping an eye on one single thing.

Q.  What was your major duty then?

A.  Whether there was crime in action where pickpocketing only being one of them.

Q.  You then followed these people onto a tram.  There must have been people on the tram with backpacks, with bags and so on?

A.  I didn’t pay notice. 

155.The fact that PC 14614 did not notice whether many people in the Wanchai MTR station had backpacks or notice whether the people on the tram had backpacks does not cause me to doubt PC 14614’s evidence of his observations commencing in the Wanchai MTR station.

156.Having carefully considered all the evidence I am satisfied so I am sure PC 14614 is a credible and reliable witness.  I accept PC 14614’s evidence of his observations commencing in the Wanchai MTR station. 

SPC 53491

157.I have carefully considered the submission of Mr Raffell that it is not credible that the defendants having been followed for over an hour without any hint of criminality are within one to two minutes of SPC 53491 taking over observation seen to “sandwich” a young couple and try to steal from them and that it is highly unlikely that SPC 53491 could have seen what he claims to have seen when travelling on the escalator[73].

158.Mr Marray, Mr Sherry and Mr Stephenson submit that the pause at the top of the escalator; the “sandwich” and the congestion at the bottom of the escalator may have been caused by the male with the suitcase[74]. Mr Sherry further submits that SPC 53491could not have had a clear and uninterrupted look at D3 from behind and see what was the true cause of the congestion[75].

159.Mr Tracy submits that SPC 53491’s evidence in cross-examination by Mr Marray about whether other people on the escalator could have seen the unzipping of the bag was evasive and unconvincing[76].

160.In cross-examination SPC 53491 agreed that there was a person standing on the escalator next to P5 and a person standing next to P2.  SPC 53491 disagreed that the persons standing in front of him on the escalator obstructed his view of P1.  SPC 53491 was not sure whether there was anything obstructing the person standing next to P5 from seeing P1 unzip the backpack and disagreed that this person was not approached by the police because there was no unzipping of the backpack[77].

161.I am satisfied from his position on the escalator SPC 53491 was able to see what happened in front of him[78]. I also note that the suitcase had wheels on and could therefore easily be pushed on and off the escalator[79]. The fact that SPC 53491 was not sure whether the person standing next to P5 could also see P1 unzip the bag does not cause me to doubt SPC 53491’s evidence about what he saw when going down the escalator.  Nothing said by Mr Raffell, Mr Marray, Mr Sherry, Mr Stephenson or Mr Tracy causes me to doubt the evidence of SPC 53491.

162.Having carefully considered all the evidence I am satisfied so I am sure SPC 53491 is a credible and reliable witness.  

163.Having carefully considered all the circumstances of the identifications made by SPC 53491, including the opportunity he had to observe each of the defendants, I accept SPC 53491’s evidence that as the defendants were walking to the escalator D2 pointed out the young couple; D3 and D4 then overtook the young couple and stood at the top of the escalator before going down; when the young couple reached the escalator D3 and D4 started to go down the escalator followed by the young couple; D1 stood behind the young lady followed by D5 and D2; that on reaching the bottom of the escalator D3 and D4 blocked the way of the young couple at which time D1 unzipped the backpack of the young lady and tried to take out a black wallet and that while going down the escalator D5 and D2 were looking back.

164.Mr Raffell further submits that without an identification parade the identification by SPC 53491 of D1 as the person who tried to open the bag and steal cannot be taken as satisfactory, in particular referring to D1 and D3 having similar clothing and all three ladies having black hair.  Mr Raffell also submits that SPC 53491’s identification of D1 as having black hair is inaccurate, D1 having a good percentage of grey hair[80]. 

165.The fact that D1 has some grey hair does not cause me to doubt the identification of D1 by SPC 53491.  Whilst there are similarities between the three female defendants SPC 53491’s description of the three females also included their clothing.  All three females wore different colour trousers: D1 black trousers, D3 blue jeans and D5 green trousers.  D1 also had a mole between her eyebrows[81]. 

166.Further, although the observation was not as long as the observation made by PC 14614, the observation of the defendants by SPC 53491 was not that of a fleeting glimpse. 

Joint enterprise

167.Taking into account:

(i) the defendants were staying in the same guesthouse[82];

(ii) D1, D2, D3 and D5 were first seen together in the Wanchai MTR station;

(iii) together with D4 they took a tram to Central;

(iv) the defendants all alighted at Bank Street;

(v) D2 and D5 walked to World-Wide Plaza where they were joined by D1, D3 and D4;

(vi) the defendants went together to the Central MTR station;

(vii) when approaching the escalator E3, D2 pointed at the young couple;

(viii) D3 and D4 then overtook the young couple and stood at the top of the escalator before going down;

(ix) When the young couple reached the escalator D3 and D4 started to go down followed by the young couple;

(x) D1 stood behind the young lady on the escalator;

(xi) D5 stood behind D1 and D2 stood behind D5;

(xii) D5 and D2 looked back as they went down the escalator; and

(xiii) on reaching the bottom of the escalator D3 and D4 blocked the way of the young couple at which time D1 unzipped the backpack of the young lady and tried to take out a black wallet,

I am satisfied so I am sure the only inference to draw is that D1, D2, D3, D4 and D5 were party to a joint enterprise to steal from the young lady (Ko Yuri). 

168.I am satisfied so I am sure that each defendant played a role in the attempted theft: D2 drawing to the attention of the defendants the young couple; D3 and D4 standing right in front of the young couple and blocking their way at the bottom of the escalator to facilitate D1 unzipping the backpack and trying to steal the wallet while D5 and D2 were standing behind to receive any stolen property and to offer any assistance if and when required[83].

169.In reaching this finding I have carefully considered the submission of Mr Stephenson that there is nothing incriminating about the defendants staying in the same guesthouse and going round together as a tourist group[84]. 

170.This submission does not cause me to doubt the findings I have made.  The importance of the defendants staying in the same guesthouse is to show that the defendants were known to each other prior to 24 April 2018 and not five strangers who the police arrested. 

171.I have carefully considered the submissions of Mr Raffell, Mr Marray and Mr Tracy that the evidence of PC 14614 shows nothing suspicious; does not show anything that resembled criminal conduct such as getting close to other passengers in a way that looked as if they were trying to steal; and that the conduct of the defendants is conspicuously innocent[85].

172.The fact that PC 14614 did not see the defendants approach anybody does not cause me to doubt the findings I have made.  In my view the importance of PC 14614’s evidence is to show that the defendants were together prior to going to the Central MTR station: D1, D2, D3 and D5 from the time they were first seen in the Wanchai MTR station and with D4 from the time they boarded the tram and went to Central. 

173.I accept the evidence of PC 14614 that he observed D1, D2, D3 and D5 in the Wanchai MTR station paying attention to people going up and down the escalators; taking the escalator down to the platform where they stood apart looking at people travelling up and down the escalators and then going back up the escalator and leaving the station via exit B from where he followed them to Central[86].

174.I have also carefully considered the submissions of Mr Raffell that it makes no sense for D2 to point out the young couple if they were going to try steal from them or for D1 to point at the young couple and get on the same carriage after trying to steal from the young lady[87]; the submission of Mr Marray that even if D2 did point as he was walking to the escalator he would be pointing in the direction of the way to the platform which is consistent with an innocent gesture in unfamiliar surroundings[88]and the submission of Mr Sherry that the evidence does not eliminate the group were simply pointing in the direction that they would take the train[89].

175.These submissions do not cause me to doubt the findings I have made.  The actions of the defendants are to viewed collectively and not in isolation.  I also note that during cross-examination D2 said that the day before the defendants had travelled on the MTR from Jordan to Central and from Central to Jordan[90]. 

176.I have also carefully considered the submissions of Mr Sherry that the evidence does not eliminate D3 walked in front of the young couple to get in front of them and that D3 being unfamiliar with the escalator stepped off slowly and carefully to ensure she did not slip or fall [91] and the submission of Mr Stephenson that the observation of D4 at the bottom of the escalator being for about 5 seconds is insufficient to establish that D4 was part of a criminal scheme[92].

177.These submissions do not cause me to doubt the findings I have made.  The actions of D3 and D4 at the top and the bottom of the escalator are to be considered together and collectively with the actions of the other defendants.

178.I have also carefully considered the submission of Mr Marray that D2 was the last one out of the five on the escalator which would support his case that he was following the other defendants[93] and the submission of Mr Tracy that looking back on the escalator is not remotely incriminating[94]. 

179.These submissions do not cause me to doubt the findings I have made.  Again the actions of D2 and D5 are to be viewed collectively with the actions of the other defendants and not in isolation.

Attempted theft

180.I am satisfied so I am sure that actions of the defendants were more than merely preparatory and amount to an attempt to steal from Ko Yuri.

181.I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt. 

D1

182.In reaching my verdict I have carefully considered everything said on behalf of D1 by Mr Raffell, both individually and collectively, including that there is no evidence the five defendants came to Hong Kong together or knew each other before meeting at the guesthouse; it is highly unlikely a gang of pickpockets would target a young, seemingly fit couple and that there is no testimony from the young lady (Ko Yuri)[95].

183.Nothing said by Mr Raffell causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  D1 is convicted as charged.

D2

184.In reaching my verdict I have carefully considered everything said on behalf of D2 by Mr Marray, both individually and collectively, including that there is nothing in the travel movement records to connect D2 with any other defendant and that on the train D2 stood separately from the other defendants indicating he was not close to the other defendants[96].

185.Nothing said by Mr Marray causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  D2 is convicted as charged.

D3

186.In reaching my verdict I have carefully considered everything said on behalf of D3 by Mr Sherry, both individually and collectively, including that in the absence of any evidence from the young lady (Ko Yuri) that D1 accessed her backpack and touched her wallet without her consent the prosecution cannot prove D1 acted dishonestly and the absence of any evidence about what the defendants discussed before they travelled down the escalator to the train[97].

187.Nothing said by Mr Sherry causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  D3 is convicted as charged.

D4

188.In reaching my verdict I have carefully considered everything said on behalf of D4 by Mr Stephenson, both individually and collectively, including that when the train arrived at Admiralty and D4 left the train he did not run or seek to lose himself in the crowd[98]. I accept the evidence of PC 8623 that when the police took the arrested persons off the train D4 hastily walked out and was immediately arrested[99].

189.Nothing said by Mr Stephenson causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  D4 is convicted as charged.

D5

190.In reaching my verdict I have carefully considered everything said on behalf of D5 by Mr Tracy, both individually and collectively, including that D5, who was 60 and fat and who could only walk slowly made her a very unlikely candidate for a place in a team of pickpockets; save for D4 and D5 the other defendants arrived in Hong Kong from different places on different days; no implements appropriate for theft or other stolen property was found; D5 had no map to find her way around Hong Kong and that five people seems a large number to share the proceeds of any theft[100].

191.Nothing said by Mr Tracy causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  D5 is convicted as charged.

[1] Cap 210.

[2] Cap 200.

[3] The court was not informed why Ko Yuri and Kim Minchul were not called as witnesses and no application was made by the defence arising from the absence of Ko Yuri and Kim Minchul.

[4] PW7 on the list of witnesses attached to the prosecution opening.

[5] Cap 221. Exhibits P3, P4, P5 and D1.

[6] See §§1-4, exhibit P3.

[7] See §2, exhibit P4 and §5 exhibit P5.

[8] See §5, exhibit P3 and §6 exhibit P5. §12 of the prosecution opening refers to CCTV footage of the defendants’ movements in and out of the guest house. The prosecution did not adduce the CCTV footage.

[9] See §7, exhibit P3 and §1 exhibit P4. Only D5 admitted the movement records of all defendants.

[10] See §§1-4, exhibit P5.

[11] See §6, exhibit P3 and §3, exhibit P4.

[12] See exhibit D1.

[13] [1997-98] 1 HKCFAR 107.

[14] [2009] 5 HKLRD 438.

[15] At the beginning of cross-examination Mr Raffell, on behalf of D1, asked PC 14614 whether he was involved with the team which arrested a man in the Four Seasons hotel in January 2018. PC 14614 said persons were arrested in the hotel but he could not be sure if that was in January 2018. In the absence of the witness Mr Raffell explained that the same team was involved in a similar arrest in which the defendant was acquitted. I asked to be satisfied that the evidence of a previous case was admissible and that the witness could be cross-examined about that case. Counsel for D2, D3, D4 and D5 were unaware of the previous case. I therefore stood the case down for the defence to consider how to proceed. After a short adjournment Mr Raffell informed the court that after being referred to HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135 he was doubtful whether he was able to pursue the matter further. I agreed for all counsel to finish cross-examining the witness without reference to the previous case after which the defence would be given time to consider the matter further. After the witness finished his evidence and before re-examination the case was adjourned to the next morning. I also referred counsel to HKSAR v Wong Kam Keung FAMC 62/2014 and the case referred to in the judgment HKSAR v Kong Wai Lun FACC 5/2014 for their consideration. The next morning defence counsel had no further questions of the witness. The witness was re-examined and asked some questions by the court. Mr Raffell then informed the court he would not be applying for an adjournment to obtain any transcript from the previous trial. No other counsel had an application for adjournment. No witness called by the prosecution was asked questions about the previous case. One of the witnesses who Mr Raffell said was involved in the previous case PC 8623 (PW7) was tendered for cross-examination. The witness was not asked any questions about the previous case.

[16] In examining the witness Ms Sujanani did not assign a number for each person described by PC 14614. I will refer to the four persons as M1, F1, F2 and F3 and the male first seen by PC 14614 on a tram as M2.

[17] By Mr Raffell on behalf of D1.

[18] By Mr Raffell on behalf of D1 and Mr Marray on behalf of D2.

[19] Also referred to in the evidence as World-Wide House and Worldwide. I will throughout my verdict use World-Wide Plaza.

[20] By Mr Marray on behalf of D2.

[21] By Mr Marray on behalf of D2.

[22] In examining the witness Ms Sujanani referred to the five persons as P1-P5 in the order that the witness described them.

[23] The colour of the bag was translated in court as brown. In reviewing the evidence, I listened to the audio of the evidence of SPC 53491. I was of the view the colour of the bag had been wrongly translated in court. I therefore asked the court interpreter to listen to the audio. The court interpreter confirmed that the translation brown was incorrect and the correct translation was black. The error having only come to my notice after final submissions all parties were notified of the error. All parties were given the opportunity to listen to the audio again and make any further submissions. No party requested to listen to the audio or make further submissions.

[24] By Mr Marray on behalf of D2.

[25] This answer was given after cross-examination.

[26] By Mr Marray on behalf of D2

[27] By Mr Marray on behalf of D2.

[28] By Mr Raffell on behalf of D1.

[29] By Mr Sherry on behalf of D3.

[30] In cross-examination by Mr Stephenson on behalf of D4

[31] By Mr Sherry on behalf of D3.

[32] See §1 of the admitted facts, exhibit P3.

[33] See §3 of the admitted facts, exhibit P3.

[34] By Mr Tracy on behalf of D5.

[35] By Mr Tracy on behalf of D5.

[36] See §2 of the admitted facts, exhibit P3.

[37] See §4 of the admitted facts, exhibit P3.

[38] PC 8623 (PW7 on the list of prosecution witnesses) was tendered for cross-examination by Mr Stephenson on behalf of D4.

[39] By Mr Stephenson on behalf of D4.

[40] By Mr Sherry on behalf of D3.

[41] See §2, exhibit P4 and §5 exhibit P5.

[42] By Mr Sherry on behalf of D3. Only Mr Sherry cross-examined WPC 8644. The evidence of WPC 8644 was not challenged.

[43] Also see §7 (ii) of the admitted facts, exhibit P3.

[44] Also see §5 of the admitted facts, exhibit P3.

[45] By Mr Raffell on behalf of D1.

[46] This answer was given after cross-examination.

[47] By Mr Raffell on behalf of D1.

[48] By Mr Raffell on behalf of D1.

[49] D2 repeated in cross-examination, by Mr Raffell on behalf of D1 and by Ms Sujanani for the prosecution, that he only remembered going down one escalator.

[50] See §1 of the admitted facts, exhibit P5.

[51] See §2 of the admitted facts, exhibit P5.

[52] See §3 of the admitted facts, exhibit P5.

[53] See §4 of the admitted facts, exhibit P5.

[54] See Bruce & McCoy: Criminal Evidence in Hong Kong, Division II [51] and Archbold 2019 §§10-45-10-47.

[55] See §§83-89.

[56] See §§80-81.

[57] See §§20-21.

[58] See §§8-14 of the closing submission of D2.

[59] See §3 of the skeleton final submission on behalf of D1; §§22-24 of the closing submissions for D3 and §4.3 of the closing skeleton argument for D5.

[60] See §§53-69 for a summary of the arrest, in particular §§57, 59, 60, 62, 66, 67 & 68.

[61] See §3 of the admitted facts, exhibit P3.

[62] See §§1-4 of the admitted facts, exhibit P3.

[63] See §§53-69 for a summary of the arrest, in particular §§53, 55, 58, 59, 60, & 63.

[64] See §26 of the closing submissions for D3.

[65] See §§7-12 of the closing submissions for D3.

[66] Only SPC 53491 referred to D5 as P5.

[67] See §§4.2 & 4.3 of the closing skeleton argument for D5.

[68] [1977] 1 QB 224; [1976] 3 WLR 445.

[69] See §§67-68.

[70] See R v Brian Thornton [1995] 1 Cr App R 578.

[71] See §3 of the skeleton final submission on behalf of D1.

[72] See §3 of the skeleton final submission on behalf of D1.

[73] See §4, 5 & 7 of the skeleton final submission on behalf of D1.

[74] See §26 of the closing submission of D2; §40 (vi) of the closing submissions for D3 and §7 of the closing submissions for D4.

[75] See §§36-37 & 40 (vi) of the closing submissions for D3.

[76] See §5.2 of the closing skeleton argument for D5.

[77] By Mr Marray on behalf of D2.

[78] Also see §29 of the closing submissions of the prosecution.

[79] See §§38 & 73.

[80] See §9 of the skeleton final submission on behalf of D1.

[81] See §29.

[82] See §5, exhibit P3 and §6 exhibit P5.

[83] Also see §§30-32 of the closing submissions of the prosecution.

[84] See §§2 & 11 of the closing submissions for D4.

[85] See §3 of the skeleton final submission on behalf of D1; §§11-15 & 20 of the closing submission of D2 and §§4.4 of the closing skeleton argument for D5.

[86] See §§16 & 18-20.

[87] See §6 of the skeleton final submission on behalf of D1.

[88] See §24 of the closing submission of D2.

[89] See §§38-40 (i) of the closing submissions for D3.

[90] See §§79-81.

[91] See §§38-40 of the closing submissions for D3.

[92] See §§3-6 of the closing submissions for D4.

[93] See §30 of the closing submission of D2.

[94] See §5.1 of the closing skeleton argument for D5.

[95] See §§1, 4 & 8 of the skeleton final submission on behalf of D1.

[96] See §§2, 3 & 33 of the closing submission of D2.

[97] See §§15-19 & 41 of the closing submissions for D3.

[98] See §§8-19 & 41 of the closing submissions for D4.

[99] See §§61-63.

[100] See §§6 & 7 of the closing skeleton argument for D5.