HKSAR v. Gurung Swatantra

HCMA 240/2020

[2021] HKCFI 478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 240 OF 2020

(ON APPEAL FROM KCCC 342 OF 2020)

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BETWEEN

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Before:  The Honourable Madam Justice Toh in Court

Date of Hearing:  30 December 2020

Date of Judgment:  3 March 2021

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J U D G M E N T

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1.On 28 February 2020, the Appellant was charged with one count of conspiracy to rob, contrary to sections 10(1) and (2) of the Theft Ordinance (Cap 210). The charge against him was subsequently withdrawn on 31 July 2020. The Appellant’s application for costs was refused by the learned Magistrate. The Appellant appealed against the Magistrate’s refusal of costs.

PROSECUTION CASE 

2.It was noted by the learned Magistrate in her Reasons for Ruling[1], it was alleged by the Prosecution that on 23 December 2019, the 1^st Defendant and 5 males all masked and armed, entered and robed a goldsmith shop.  The gang fled with over $1.7 million worth of jewellery. The robbery was alleged to have been committed at 1211 hours and CCTV camera captured the Appellant walking with one of the alleged robbers at 1231 hours.

3.Based on the CCTV footage, police on 25 February 2020 obtained a search warrant and raided the Appellant’s home.  The Appellant was found sleeping in his bedroom and the 3^rd Defendant, another suspect of the case, was found hiding underneath the Appellant’s bed. Also found under the Appellant’s bed was a big rucksack containing 3 smaller rucksacks, and a gold bracelet, later found to be one of the stolen property, still with the shop’s tag attached, dropped out from one of the rucksacks.  It is asserted by the Prosecution that one of the small rucksacks was later found to contain the Appellant’s DNA.  

4.The Appellant was arrested and cautioned, and subsequently the police then played the CCTV footage to the Appellant in the first video recorded interview on 25 February 2020, and pointed out to him that he was seen walking with one of the robbers shortly after the robbery.  To this allegation, the Appellant remained silent.  However, during this interview, the Appellant claimed that he lived at the place of arrest where the stolen property was recovered, with his family. 

5.The alleged robber seen walking with the Appellant was never located and subsequently on 31 July 2020 the Prosecution applied to withdraw the charge against the Appellant.  The Appellant then applied for costs. 

MAGISTRATE’S FINDINGS

6.The learned Magistrate having viewed the CCTV footage, said that she could not make a finding as to whether the person in the CCTV footage was actually the Appellant, as the Appellant was wearing a face mask during court proceeding in view of the public health situation.  However, the learned Magistrate pointed out that when the footage was played to the Appellant and the police alleged that he was the person in the footage, the Appellant chose to remain silent.  The learned Magistrate was of the view that the place where the Appellant was arrested was the Appellant’s home.

7.The learned Magistrate, in her conclusion, said that the presence of the 3^rd Defendant under the Appellant’s bed did suggest that the Appellant knew of the 3^rd Defendant’s presence under his bed.  She went on to observe at paragraph 22 of her ruling:

“22.  … The presence of D2’s DNA suggested that he had the use of that small rucksack before. All these could not be explained by mere coincidence as suggested by the defence. The evidence as a whole suggested that D2 was connected to the robbery. Since D2 elected to exercise his right to remain silent, no denial or innocent explanation was available for consideration.

23.  Upon due consideration I was with the view that D2 did bring suspicion on himself.  The prosecution was entitled to suspect or believe that D2 was a co-conspirator of the robbery case.  For these reasons I refused the defence’s application for costs.”

DISCUSSION

8.From the evidence as I have mentioned above, there was very tenuous evidence as to whether the Appellant was a co-conspirator in the robbery, and that is why the Prosecution conceded that they had to drop the case because they were not confident of a conviction should the matter go to trial.  At most, from the evidence as I can see, he may be suggested to have handled stolen property but nothing more. 

9.Even if it was the Appellant in the CCTV footage seen talking to an alleged robber half an hour after the robbery, it is not evidence that can support a conspiracy to rob charge.  Therefore, that is where I find that the learned Magistrate was in error when she found that the Prosecution was entitled to suspect or believe that the Appellant was a “co-conspirator” of the robbery case.  Had the Appellant not been silent and admitted that he was the person in the CCTV footage, that does not bring the prosecution case against him that he was the co-conspirator of the robbery any further.   

10.I therefore find that the learned Magistrate was in error when she found that the Appellant did bring suspicion on himself as a co-conspirator of the robbery case.  I therefore find that costs in this case should follow the event and the Appellant is entitled to his costs to be taxed, if not agreed.

Mr Ng Wing Kit,  SPP(Ag.) of the Department of Justice, for the Respondent

Mr Allan William G, instructed by Mohnani & Asssociates, for the Appellant