HKSAR v. Turbat Undrakhbayar and Another

CACC 113/2022

[2023] HKCA 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 113 OF 2022

(ON APPEAL FROM DCCC NO 808 OF 2021)

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BETWEEN

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J U D G M E N T

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1.The applicants were jointly charged with one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. The 1^st applicant (“A1”)  indicated his intention to plead guilty to the charge on 29 December 2021 and duly did so on 6 June 2022. The 2^nd applicant (“A2”)  pleaded not guilty to the charge and, following a trial before Deputy Judge Peter Hui (“the judge”)  in the District Court on 6 July 2022, he was convicted of the offence. On 19 July 2022, A1 was sentenced to 20 months’ imprisonment, while A2 was sentenced to 30 months’ imprisonment.

2.A1 now seeks leave to appeal against sentence while A2 seeks leave to appeal against conviction only.  Both of them act in person.

The prosecution case

3.The charge alleged that on 21 May 2021, outside the Dragon Centre, No 37A Yen Chow Street, Sham Shui Po in Kowloon, A1 and A2 together with three other persons unknown, stole a wallet which contained five bank cards, a Hong Kong Identity Card, a Home Visit Permit, $160 cash and other miscellaneous items, which belonged to a Madam Wong (“PW1”).

4.A2 admitted that at about 7:03 pm on 21 May 2021, he was present outside the Dragon Centre.  At 7:05 pm on the same day he was arrested by PC1771 (“PW3”)  at that location, while PW3 seized from A2 a pale green scarf.  It was not disputed that at the same time on the same day, PC12066 (“PW2”)  seized from A1 the items particularised in the charge, which all belonged to PW1[1].

5.PW1’s evidence was not in dispute.  She and her husband used the light controlled pedestrian crossing on Yen Chow Street to go to the Dragon Centre.  She was not aware that her wallet had been stolen until a plainclothes police officer stopped her inside the Dragon Centre.  Later she went to Sham Shui Po Police Station to confirm that the wallet and its contents belonged to her, and that nothing was missing[2].

6.PW2 was attached to the MTR Police District Task Force.  On 21 May 2021, he and his team, which consisted of six other police officers, were on duty in plainclothes conducting anti-pickpocket patrol.  At about 5:50 pm, PW2 was inside Sham Shui Po MTR station on the train platform. He noticed that four males and one female were acting furtively, approaching passengers on the platform from time to time and looking at their handbags. PW2 duly kept them under observation and reported what he had seen to his team members.  He described the subjects under observation to his teammates as: A1 (whom he later arrested), A2 (whom he identified in court), Male A, Male B and Female C.  The five persons were talking among themselves.  It was PW2’s observation that Male A seemed to be the ringleader, whom others would listen to and follow.  The group left the platform area.  PW2 then followed the group and PW3 joined him.  They tailed the group to the concourse and out of the MTR station.

7.In the hour that followed, the group walked around in Sham Shui Po around Cheung Sha Wan Road, Apliu Street, Yuen Chow Street and Fuk Wa Street.  PW2 kept a distance of about 10 to 15 metres, with the group under his observation.  On seven or eight occasions, the group approached and looked at the handbags of people passing by.

8.At about 7 pm, the group stopped outside a 7-11 convenience store on Yen Chow Street.  Male A spoke while the rest of the group listened.  PW2 could not hear what was said.

9.When the pedestrian crossing light on Yen Chow Street changed to green, pedestrians began crossing the road.  Suddenly, Male A made his way quickly onto the crossing in order to follow PW1, who was walking very slowly and supporting her husband.  PW2 observed the group at a distance of about 10 metres on the pavement.  Male A followed PW1, pointed to PW1 and turned around to say something briefly to A2.  A2 then followed Male A at a distance of half a metre behind with a pale green scarf in his right hand.  PW2 thought he had earlier seen Female C holding the scarf.  The rest of the group clustered around PW1, with Male B and Female C appearing to act as lookouts. Before PW1 and her husband reached the pavement outside the Dragon Centre, Male A opened the zip of PW1’s shoulder bag and took out a wallet.  At the same time, A2 held out the scarf at waist level, so that the scarf acted as a screen behind Male A.  After Male A took the wallet, he immediately passed it to A1, who was on his right.  PW2 reported what he had seen to his teammates.  He then caught A1’s hands which were holding the wallet and revealed his police identity[3].

10.In cross-examination, PW2 admitted that in his witness statement he had not stated that Female C was in possession of a scarf on the MTR platform.  PW2 could not say whether A2 bought the pale green scarf from a street stall.  PW2 disagreed that A2 only wrapped the scarf around his left arm and had not spread it out in order to commit an offence[4].

11.PW3 was the arresting officer of A2.  After PW2 made a report to the team about the suspicious group, PW3 joined him in tailing the group who left the MTR station.  PW2 was closer to the group than PW3.  PW3 observed that the group walked up to crowded areas in Sham Shui Po and looked at handbags being carried by passers-by.  At 7:03 pm, the group crossed Yen Chow Street on the pedestrian crossing in the direction of the Dragon Centre, following PW1 and her husband.  PW3 saw A2 use both hands to hold a green scarf about 2 feet in width at his waist level for about 10 seconds.  PW3 thought that was to prevent other people from seeing something, although he did not know what at that time.  After PW2 reported to his team that one member of the group had stolen a wallet, PW3 intercepted A2 on the pavement just outside the Dragon Centre and revealed his police identity.  At the time, A2 was holding a green scarf.  He put up a struggle but was subdued.  The rest of the group managed to escape[5].

12.Under cross-examination, PW3 stated that the suspects had taken three or four steps from the pavement onto the pedestrian crossing when A2 held out the green scarf.  PW3 admitted that his view of other suspects was obstructed by pedestrians but he had A2 within his sight at all times.  He disagreed that A2 kept the scarf wrapped around his left arm without ever unfolding it as they walked across the crossing.  PW3 stated that he wrote his written statement without seeking assistance from PW2[6].

13.A2 elected not to give evidence and did not call any witnesses.

14.The defence criticised the evidence of PW2 and PW3 for discrepancies in their accounts and for their lack of credibility on the basis that one of the witnesses had obviously copied from the other’s statement since the descriptions of appearances and clothing of the suspects were identical.  The defence also submitted that when PW2 claimed that Female C had been in possession of the pale green scarf in the MTR station, it was to bolster the allegation that A2 was part of the pickpocketing gang, particularly when he had never mentioned this fact in his witness statement.  It was also pointed out that the place of the theft was so close to Sham Shui Po Police Station that it would have been irrational for A2 to commit such an offence at that location.

Reasons for verdict

15.The judge accepted PW2’s evidence that the group was acting furtively on the platform inside the MTR station.  He agreed with the defence submission that PW2’s claim that Female C was holding the pale green scarf on the train platform, when there was no such fact recorded in his witness statement, was intended to link A2, who was later found in possession of the scarf, to the pickpocketing gang.  The judge also agreed with the defence argument that PW2 and PW3 were not honest in refusing to concede that they had shared information with each other when compiling their statements. He agreed that this issue impacted on the officers’ credibility and reliability.

16.The judge noted that the crucial difference between PW2 and PW3’s evidence was the place where the pickpocketing took place: PW2 said it was on the pedestrian crossing near the pavement outside the Dragon Centre, while PW3 said it was a few steps onto the pedestrian crossing from Yen Chow Street.  The judge found that their evidence on this point could not be reconciled.

17.However, despite the accepted criticism of PW2 and PW3’s evidence, the judge found that the evidence was so strong that the only reasonable inference was that A2 was a member of the pickpocketing gang.  He had remained with the group all along and was amongst the group clustering closely behind PW1 when the theft was carried out.  It was admitted that A2 was intercepted with the pale green scarf in his hand and this piece of evidence supported the allegation that A2 had used the scarf to conceal the theft.  The judge was sure that A2, by his presence in the group and his holding of the scarf behind the person stealing the wallet, was acting in concert with the group.  He rejected the notion that A2 would not have committed the offence so near to a police station.

Reasons for sentence

18.The summary of facts admitted by A1 upon his guilty plea was that he was part of the pickpocketing gang of five and he took over the wallet, which his accomplice had stolen from PW1, on the pedestrian crossing[7].

19.In mitigation, it was said that A1 was 33 years old and from Mongolia.  He was a university graduate in Mongolia.  He had had to flee his homeland because of trouble with a local gangster who planned to injure him.  He had therefore come to Hong Kong in 2015.  After being convicted of an offence of theft and following his discharge from prison, he had applied for asylum and was now a Form 8 recognizance holder.  A1’s family in Mongolia had been remitting money to him but his mother had lost her job during the Covid-19 pandemic.  His grandmother and father had passed away in 2020 and 2021 respectively.  A1’s family could no longer support him financially, while he was being chased by his landlord to pay overdue rent.  Accordingly, he turned to his friends and was persuaded to commit the present offence.  He had decided to return permanently to Mongolia after serving his sentence.

20.A1’s counsel submitted that HKSAR v Ngo Van Huy[8]was applicable and identified the aggravating factors in the present case: A1 was a repeat offender, a Form 8 recognizance holder and the offence was well-planned and committed jointly with others.  His counsel informed the judge that before A1 committed the present offence, he had committed an attempted theft for which he was arrested in March 2021, to which offence he pleaded guilty, and for which he was sentenced to 12 months’ imprisonment on 9 September 2021.  It was said that A1 had wanted to plead guilty to that earlier offence together with the present offence, but had been advised it was impossible to do so because the cases were in different courts.  Had the two offences been dealt with together, it was argued that a portion of one sentence would likely have been ordered to run consecutively to the other, in accordance with the principle of totality[9].

21.The judge noted that the guideline sentence in Ngo Van Huy of 12 to 15 months’ imprisonment was suitable for a first offender after trial.  Since A1 was a repeat offender, a higher starting point should be adopted.  The judge remarked that the fact that the theft was committed by a gang of five was particularly alarming, since each person in the joint enterprise had a role to play.  The offence was premeditated and well-planned. A1 formed part of such an organised and professional ring of thieves and a substantial increase in sentence was therefore called for.  The offence was also committed in a crowded district.  The judge observed that although the stolen property was a wallet containing a small amount of cash and other items, it would have caused a significant degree of inconvenience and constituted a direct invasion of a person’s privacy and should attract a heavy penalty.  In the judge’s view, there was an obvious need to impose a deterrent sentence in order to protect the public.

22.The judge further noted that A1 had seven previous convictions in six previous court appearances, of which two were for theft (for which he had been sentenced to imprisonment in October 2015 and January 2018); three were for theft by pickpocketing (for which he had been sentenced to imprisonment in October 2016, January 2019 and September 2021); and two were for other offences of a different nature.  A1’s last conviction was for an attempted theft, in respect of which he was sentenced to 12 months’ imprisonment in September 2021.

23.In the circumstances of this case, the judge adopted a starting point of 16 months’ imprisonment, enhanced by 8 months for the various aggravating features.  Reflecting the fact that A1 was a Form 8 recognizance holder, the sentence was further enhanced by 6 months[10]. The resulting starting point was 30 months’ imprisonment.  A1 was then given the customary one-third discount for his timely plea.  Accordingly, his resulting sentence was 20 months’ imprisonment.

24.The judge declined to adjust the sentence in the present case to reflect the possibility that A1 would have had a deduction had his earlier offence been dealt with together because the two offences were separate and distinct and the sentences should be served consecutively[11].

Grounds of appeal – A2 against conviction

25.By his letters dated 29 July and 9 August 2022, A2 repeated the arguments advanced at trial, namely, that PW2 and PW3 were not honest and reliable witnesses, that there were material discrepancies in their evidence which could not be reconciled and that the judge erred in finding the prosecution case proved beyond reasonable doubt.  Before me this morning, he has also complained that the police made no effort to obtain any CCTV evidence which might have demonstrated that PW2 and PW3 were not telling the truth.

Grounds of appeal – A1 against sentence

26.By his letter dated 5 December 2022, A1 repeated his account on how he was in financial difficulties when his family could no longer send money to him from Mongolia, and how his peers had influenced him to commit the present offence.  A1 stated that, as soon as he was discharged from prison, he wished to return to Mongolia because his mother had been pleading with him to do so. 

The respondent’s submissions

27.Mr Lam, on behalf of the respondent, opposed leave being granted to A1 and A2 in their respective applications.  In relation to A1, Mr Lam listed no less than nine aggravating features, which would have justified a particularly serious view of this offence by the judge: (i)  this was an organised gang of pickpockets; (ii)  the gang consisted of no less than 5 members; (iii)  accordingly, it was a professional gang in which the individual members had been assigned particular roles, some using tools such as the pale green scarf; (iv)  the crime was clearly premeditated; (v)  A1 had played an active role in the offence, inasmuch as he was the one who received the wallet stolen by Male A; (vi)  the crime was committed in a crowded district of Kowloon popular with locals and tourists alike; (vii)  A1 had six previous court appearances, involving 7 individual offences, five of which were for theft, in which he had served a total of 3½ years’ imprisonment, representing roughly half of his stay in Hong Kong; (viii)   the present offence had been committed whilst on bail for an offence carried out in March 2021, for which he had originally been granted police bail, before being granted court bail.  In any event, this offence was committed a mere two months after his previous pickpocketing offence; (ix)  the applicant was a Form 8 recognizance holder, who committed the offence with another Form 8 recognizance holder.  Contrary to his claim, he had taken no steps to revoke his asylum claim in order to return to Mongolia.  Accordingly, Mr Lam submitted that the enhanced starting point of 30 months’ imprisonment was neither manifestly excessive nor wrong in principle.

28.In relation to A2, Mr Lam submitted that the evidence clearly showed that A2 was part of the pickpocketing gang in that he had been with the group from the first moment PW2 noticed the group acting furtively on the train platform up to the time when PW1’s wallet was stolen. It was an undisputed fact that A2 was arrested with the pale green scarf still in his hands.  Despite the judge’s finding that PW2 and PW3’s evidence was inconsistent, it did not in any way undermine the crucial parts of evidence pointing to A2’s guilt.  Mr Lam further argued that the evidence of PW2 and PW3 not being consistent as to the exact place where the theft took place showed that the prosecution witnesses did not collude or they would have got this detail right.  He also contended that nothing called into question the evidence of either witness seeing A2 holding up the scarf at his waist level when his accomplices stole the wallet.

Consideration

29.I shall deal with A2’s application for leave to appeal against conviction first, followed by A1’s application in relation to sentence.

Appeal against conviction (A2)

30.This is a factual appeal in which, in order to be ultimately successful, A2 will have to persuade the Court of Appeal that no reasonable tribunal faced with this quality of evidence could have convicted him.  However, the problem for A2 is that despite the discrepancies detailed by the judge, A2 was undeniably part of the same group that was together from 5:50 pm to 7:05 pm on the evening in question.  Yet, it is clear that when PW1 was relieved of her wallet by Male A, who passed it to A1, the two men must have been acting in concert.  The question then becomes whether A2 was also acting in concert to commit theft with Male A and A1 and the other two members of the group, of which he had been a part for at least an hour and a quarter.

31.The judge was satisfied that whether or not PW2 was accurate, or indeed was telling the truth, about Female C holding or wearing a pale green scarf on the platform inside the MTR station, the fact is, and this was not disputed, that A2 was holding a pale green scarf when he was intercepted.  That scarf had been used, so the judge found, to mask the activities of Male A and A1 when relieving PW1 of her wallet.  It should also be noted that A2 had produced the scarf to shield Male A’s activities on the crossing immediately after Male A had spoken to him.  These facts were more than sufficient to make A2 an active participant in the joint enterprise of theft together with Male A and A1, regardless of where the scarf came from, or who had it or did not have it, on the MTR platform; and regardless of precisely where the offence took place.

32.As for the identical descriptions of the five persons in the statements of PW2 and PW3, this is exactly the sort of issue of credibility which juries are routinely required to assess when deciding whether they believe police or prosecution evidence.  And, of course, juries are entitled to accept some parts of a witness’s evidence and reject other parts. A judge sitting alone is in the same position.  Unless one can say that a particular piece of testimony is so serious a matter that no jury (or judge sitting alone)  properly directed (or directing himself)  could have convicted the applicant on such evidence, or that it is so fundamental a concern that the eventual conviction is unsafe or unsatisfactory as a result, then it is a matter for the jury (or judge)  to take into account, along with all the other evidence when assessing whether they are (or he is)  sure of guilt.  That seems to me exactly what the judge did.  He clearly considered these matters but was nevertheless sure that A2, by his actions at the time, was part of the joint enterprise to commit theft on PW1.

33.As for the other matters that were said to be irreconcilable as between the prosecution witnesses, the judge has borne them all in mind but nevertheless concluded that the evidence was “so strong that the only reasonable and irresistible inference to be drawn is D2 was a member of the pickpocket gang”[12].

34.It is true there was no CCTV evidence.  But that is a fact and I have to deal with the evidence as it is, without the benefit of any CCTV evidence.  In any event, Mr Lam informed me that, although a request for such evidence was made by the defence prior to trial, no such evidence in fact existed.

35.I do see any reasonably arguable grounds sufficient to unsettle the conviction and leave to appeal is accordingly refused.

Appeal against sentence (A1)

36.There were several very serious aggravating features in the case of A1.  Quite apart from the fact that A1 was a member of an organised gang of pickpockets operating in a busy area of Kowloon, A1 is a Form 8 Recognizance holder with a significant history of previous convictions for the same offence.  Moreover, it seems to have been overlooked by the judge that this offence before this Court was committed whilst A1 had been on bail for another offence of attempted theft, which would be a further serious aggravating factor.

37.I can see no reasonably arguable grounds of appeal against sentence and leave to appeal is accordingly refused.  Indeed, I am bound to say that the Court of Appeal might view this sentence, in view of the sheer multitude of aggravating features, as on the lenient side. 

38.Having refused leave to A1 to appeal against sentence and A2 to appeal against conviction, I should advise each of them that they have the right to renew their respective applications for leave to the Court of Appeal.  However, they should also be warned that the Court of Appeal has the power to order that any time either applicant has spent in custody pending his appeal should not count towards the sentence to which he is subject if it comes to the view that there is no merit in the respective application. A1, in particular, would do well to reflect on this matter, given my comment that the sentence might be viewed to have been lenient.

Mr Wilson Lam SPP (Ag), of the Department of Justice, for the Respondent

The 1^st Applicant appeared in person (re Sentence)

The 2^nd Applicant appeared in person (re Conviction)