HKSAR v. Khan, Altaf

HCMA 604/2021

[2022] HKCFI 1220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 604 OF 2021

(ON APPEAL FROM ESCC 1886 OF 2021)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

1.The appellant (“the appellant”), appeals against his conviction and sentence after trial by Deputy Magistrate Gary Chu (“the magistrate”)  of the offence of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (“the Charge”).

2.The appellant was sentenced to 18 months’ imprisonment on the Charge.

The Prosecution case

3.The prosecution case was that the appellant acting in conjunction with his co-accused Zulfiqar, was observed by police officer Chong pickpocketing a male Rembold Clemens Alexander (“Rembold”)  of his mobile phone and wallet whilst he was lying down dead drunk on the staircase of Pottinger Street at the Junction of Queen’s Road Central, Central.

The facts

4.On 28 August 2021 in the early hours of the morning police officers patrolling in the area saw Rembold lying on the third step of the Pottinger Street staircase.  Police officer Chong tried to wake Rembold up but there was no response.  Officer Chong sensed a strong smell of alcohol from Rembold.  Officer Chong left Rembold lying on the staircase but went nearby to make observation of Rembold and the surrounding area.  Two other police officers of the same team, Ho and Lui lay ambush higher up on the staircase making their observation of the staircase.

5.At around 5.15 am Officer Chong saw two Pakistani men later known to be the appellant and his co-accused cross Queen’s Road Central towards the direction where Rembold was lying.  The appellant walked up 6-7 steps of the staircase and stopped for about 4-5 seconds whilst his co-accused was below on the pavement of Queen’s Road Central looking around.

6.The appellant then walked down the stairs and approached Rembold.  The appellant took a mobile phone from Rembold’s right front trousers pocket and a wallet from his right rear trousers pocket.  The appellant then walked back up the stairs again and D2 followed him from behind.  During this time Officer Chong was making his observation of the events and was communicating all along with Officer Lui on the mobile phone and told him what he had seen.

7.Officer Lui saw the appellant walking up the stairs of Pottinger Street and searching the wallet which was held in the appellant’s hand.  At this juncture, Officer Lui rushed out from the observation point and shouted “Police”.  He saw the appellant use his right hand to hide the wallet behind his back and then immediately threw it on the ground.  He subdued the appellant. At this juncture Officer Ho also dashed out to assist.  At the same time, Officer Chong also dashed towards the co-accused and subdued him.

8.Officer Lui found the wallet which was thrown on to the ground by the appellant and a mobile phone lying next to it.  Rembold later identified them both as belonging to him.

The Defence case

9.The appellant was legally represented at trial.  He elected not to give evidence or call any witnesses.  The appellant’s case was that the appellant did not take the wallet or mobile phone from Rembold.  There was no independent evidence of the events as alleged by the police officers and they were not telling the truth.

The magistrate’s findings

10.The primary issue at the trial before magistrate was the credibility of the police officers.

11.The magistrate found all the prosecution witnesses to be honest and reliable witnesses (the police officers and Rembold).  After a careful assessment of the evidence the magistrate found that the appellant stole the wallet and mobile phone from Rembold whilst the co-accused was acting as a lookout.  Both the appellant and his co-accused were convicted of the charge.

Grounds of Appeal against conviction

12.The appellant acting in person, advanced the below grounds of appeal.  In the quotations below is the ground of appeal as was written by the appellant.

1)  there was no CCTV footage;

2)  the police should have made a video of their observation;

3)  there was no evidence to prove the appellant had touched the wallet or the phone as no fingerprints or DNA was found on both items;

4)  “if police are so honest so that means they can put people in jail without going court processing”;

5)  the magistrate erred in his analysis of $180 that Rembold claimed was inside the wallet;

6)  the police officers lied and made up their story against the appellant because he is Form 8 holder with a previous similar conviction and

7)  there was no credible evidence that the appellant was the one who stole the wallet and mobile phone.

CONSIDERATION

Ground 1, 2, 3, 4, 6 and 7

13.I shall deal with these six grounds together.  At the trial, the prosecution adduced no CCTV footage, video recording, fingerprint or DNA evidence.  The appellant asserts that as can be seen from the photographs exhibited there were CCTV cameras from other buildings in the area which would have captured the events alleged by the police officers.  The appellant contends that the prosecution should have obtained the CCTV recordings to support the police officers evidence.  Alternatively, the police officers themselves could have made their own video recording of the events to support their evidence.  The appellant submits that if the police officers were telling the truth the prosecution should have adduced at least one of these types of independent evidence to support the police officers’ credibility.  As the prosecution failed to produce any independent evidence it demonstrates that the police officers were not telling the truth.  The magistrate therefore wrongly accepted the police officers were credible witnesses.

14.Dealing firstly with independent evidence.  The prosecution is not required to adduce such independent evidence in a criminal case.  The Court of Appeal held that the absence of DNA, fingerprint or CCTV evidence to prove an appellant’s guilt does not undermine a prosecution.  Macrae VP said at para 42 in HKSAR v JASSEY FRANCIS JA AND OTHERS [2018] HKCA 369:

“The absence of DNA and fingerprint evidence to show that a defendant has handled a vital exhibit is a neutral fact: see, for example, HKSAR v Law Wing Hong[1]; HKSAR v Pham Thi Nga[2]; HKSAR v Butt Ummar[3]; HKSAR v Tsuchiya Koji[4]; HKSAR v Dramane Mouhamed Saiti[5]. The prosecution are not required to provide such evidence in a criminal case, and nor does the absence of such evidence in the normal course undermine a prosecution. The same may be said of CCTV evidence.”

15.The magistrate was fully aware that the case against the appellant was based solely on the evidence and credibility of the prosecution witnesses evidence.  The two principle witnesses were officers Chong and Lui.  The prosecution case relied upon the correctness of their observations of the appellant and the co-accused.  The absence of such independent evidence did not undermine the prosecution case.

16.The magistrate carefully assessed the prosecution witnesses evidence and was entitled to find them to be honest and reliable witnesses.

Ground 5

17.It was Rembold’s evidence that his wallet contained $180, however when the police officers searched the wallet after the appellant took the wallet $180 was missing. The $180 was not found on the appellant nor on the co-accused. The appellant insists that as the $180 was not found on them it proves he did not take nor steal the wallet.  The magistrate’s analysis of the evidence that he took the wallet containing the $180 was therefore flawed.

18.The magistrate’s analysis and reasoning in relation to the $180 is set out in paragraph 20 of the statement of findings[6] as follows:-

“20. D1’s counsel also sought to argue that the $180 which Mr Rembold claimed to have had in his wallet were not found inside the wallet and neither one of the police officers could be able to see how D1 or D2 had taken the money. In my view, it does not cast any doubt on the Prosecution case. It could be the case that Mr Rembold might have lost it on his way from LKF to the staircase or that the money might have been stolen by someone else before D1 & 2 stole the wallet from him. In any event, the police could not tell us how long Mr Rembold had been lying there on the staircase. He might have been lying there for quite awhile before he was found by the police and the chance of his money being stolen by someone else cannot be eliminated. However, this does not mean that D1 could not have stolen the wallet with the remaining items as stated in the particulars of the charge from Mr Rembold. In fact, apart form the missing HK dollars, the wallet did contain all the remaining items which belonged to Mr Rembold as shown in the photos P1 (5-12).”

19.The magistrate had carefully considered the missing $180.  Apart from the reasons mentioned, there could be many other reasons why $180 was not in the wallet.  One is that, Rembold may have been mistaken about the amount of money in his wallet given his drunken state.  Regardless, the particulars of the charge did not specifically allege that $180 was stolen, it was particularised as “some Hong Kong dollars”.  The particulars of the charge listed in detail the other items contained in the wallet such as bank cards, a German ID and student card amongst other items.

20.Accordingly, the fact that $180 was missing in the wallet was not fatal to the prosecution case, all the other items particularised were found contained in the wallet stolen by the appellant from Rembold.  The magistrate correctly concluded:

“In fact, apart form the missing HK dollars, the wallet did contain all the remaining items which belonged to Mr Rembold as shown in the photos P1 (5-12).”

Conclusion

21.The magistrate’s verdict was based solely on the evidence and credibility of the prosecution witnesses.  There are no reasons to disturb the magistrate’s evaluation of the evidence and his finding of facts.  The conviction was neither unsafe nor unsatisfactory.  The appeal against conviction is dismissed.

Appeal against Sentence

22.The only ground relied on by the appellant in his oral submissions was that he knows of other defendants sentenced in other cases on a similar charge who have been sentenced to less severe terms of 4 to 6 months’ imprisonment and therefore the sentence imposed on him was too high.

Consideration

23.The appellant was convicted of an offence of theft by pickpocketing.  The magistrate took a starting point of 15 months’ imprisonment and enhanced it to 18 months to reflect the aggravating features.

24.The appellant’s grievance on the disparity of sentence imposed upon him by the magistrate and sentences imposed on other defendants for a similar offence has no merit.  In sentencing the appellant the magistrate relied on and applied the guideline case for pick pocketing of HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  The Court of Appeal held that an immediate custodial sentence of 12 to 15 months after trial is appropriate for a first offender.  That, however, is subject to the existence of aggravating features as laid down by Ma CJHC at para 9(4).

25.In sentencing the appellant, the magistrate correctly took into account the aggravating features in this case which were as follows:-

(i)  The appellant’s 4 previous similar convictions to theft, one of which is for pickpocketing;

(ii)  The appellant is a Form 8 holder;

(iii)  The appellant committed the offence in concert with the co-accused and

(iv)  The extreme prevalence of this offence in the area.

26.There is no merit nor any justifiable grievance in the appellant’s contention that his sentence was higher than defendants sentenced in other cases.  The magistrate correctly and properly followed and applied the guidelines in sentencing the appellant for pickpocketing.  The sentence imposed by the magistrate was not manifestly excessive or wrong in principle.  The appeal against sentence is dismissed.

Ms Grace Chan, SPP of the Department of Justice, for the respondent

The appellant appeared in person