HKSAR v. Akhtar Muhammad Saeed
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DCCC 482/2025 [2026] HKDC 1017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASES NO 482 OF 2025 --------------------------------------------
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----------------------------------------- REASONS FOR VERDICT ----------------------------------------- 1.The Defendant pleads not guilty to two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210. INTRODUCTION 2.The case concerns the theft of a motorcycle bearing registration mark XL6394 (“VEH 1”) and the theft of a number plate with registration mark WN3780 and a vehicle licence from another motorcycle (“VEH 2”). 3.The particulars of Charge 1 allege that on a day between 15 and 17 February 2023, both dates inclusive, near Lamppost No. VA5464, Tuen Mun San Tsuen, Lam Tei, Tuen Mun, the defendant stole VEH 1, property belonging to Wong Yiu-fu (“Mr Wong”). 4.The particulars of Charge 2 allege that on a day between 11 May 2022 and 8 March 2023, both dates inclusive, outside Sheung Tsuen Village Office, Sheung Tsuen, Kam Sheung Road, Pat Heung, Yuen Long, the defendant stole one number plate with registration mark WN3780 and a vehicle licence, property belonging to Ko Wai-lun (“Mr Ko”). 5.On 17 February 2023, Mr Wong found VEH 1 originally parked at roadside in Tuen Mun missing. Case was reported. 6.On 8 March 2023, some police officers while on patrol saw a male (“the Male”) wearing a helmet on board VEH 1 with engine ignited in Yuen Long. Upon seeing police approaching, the Male immediately fled. 7.The police found number plates with WN3780 were displayed on VEH 1. On the left rear mirror of VEH 1 was a fingerprint proved to have been made by the defendant. A bag containing the defendant’s Recognizance (Form 8) under section 36(1) of the Immigration Ordinance, Cap 115 and his Pakistani driving licence along with some other items was found hanging on VEH 1. 8.On 9 March 2023 when being informed by the police that the licence number of VEH 2 was affixed on another vehicle, Mr Ko found the number plate affixed on VEH 2 missing. 9.On 31 March 2023, the defendant was arrested at his residence. 10.The main issue is whether the Male was the defendant. 11.The prosecution case is that since the identification documents of the defendant and a fingerprint of him were found on VEH 1, the only inference to draw is that the Male was the defendant. 12.The defence submits that the Male who fled the scene was never identified. The evidence is insufficient to provide the case to answer appropriation, dishonesty, or the requisite mental element beyond reasonable doubt. Nor can any of those elements of theft be inferred. 13.In my view, the question whether the defendant was the rider or the passenger of VEH 1 or an innocent passerby when the fingerprint was made and the defendant’s identification documents were left on VEH 1 was one of the fact for the jury and should be left to the jury. EVIDENCE 14.The entire prosecution case was admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221 (Exh P1). No witnesses were called. 15.The defendant elected not to give evidence. No witnesses were called on his behalf. No adverse inference is drawn against the defendant for remaining silent. That is his right. This proves nothing one way or the other. 16.In reaching my verdict, I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout. The defendant has nothing to prove. I direct myself that I must be sure of the guilt of the defendant before I can convict, each charge being considered separately. On the other hand, if the court thinks that the defence case is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted. 17.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 the defendant as well as one in his favour, the adverse inference cannot be drawn. 18.I have carefully considered all the evidence and the submissions of Mr Raffell. Mr Swainston did not make closing submissions. Theft and recovery of VEH 1 and the number plate of VEH 2 19.Admitted in evidence is that at 2115 hours on 15 February 2023, Mr Wong parked VEH 1 at roadside near lamppost VA5464, Tuen Mun San Tsuen, Lam Tei Main Street, Tuen Mun. Upon his return at 1200 hours on 17 February 2023, Mr Wong found VEH 1 missing. Case was reported.[1] 20.Admitted in evidence is that at 0420 hours on 8 March 2023, while PC54754 and his colleagues were conducting anti-crime patrol near Lamppost U8345, Kam Sheung Road, Pat Heung, Yuen Long, they spotted the Male, wearing a helmet, a black long-sleeved top, and a pair of dark coloured trousers on board VEH 1, with engine ignited. A Philippines female Ilaw Reshal Goso was standing next to VEH 1.[2] Upon seeing police approaching, the Male immediately fled[3]. 21.Admitted in evidence is that VEH 1 was found to be affixed with the licence plate of WN3780, a licence number registered under VEH 2 owned by Mr Ko, a used car dealer.[4] 22.Admitted in evidence is that on 11 May 2022, Mr Ko bought VEH 2 and parked it outside his office at Sheung Tsuen Village Office, Sheung Tsuen, Kam Sheung Road, Pat Heung, Yuen Long. VEH 2 was not under a valid vehicle licence. On 9 March 2023, Mr Ko was informed by the police that the licence number of VEH 2 was affixed on another vehicle. Upon checking, a pair of licence plates affixed on VEH 2 were found missing.[5] Police investigation at the scene 23.Admitted in evidence is that a bag (Exh P2), containing the defendant’s Form 8 (Exh P3) and his Pakistani driving licence (Exh P4) (expired on the face of it), along with a wallet (Exh P5), some cash in HKD (Exh P6) and two mobile phones (respectively Exh P7 and P8), was found hanging on VEH 1. Two motor-cycle helmets were seized, one at the scene (Exh P9) and the other (Exh P10) along the route the Male took to escape, respectively.[6] 24.Admitted in evidence is that two fingerprints were lifted from the left rear mirror of VEH 1 and one of them belonged to the defendant.[7] 25.Admitted in evidence is that between 0700 hours and 0945 hours on 8 March 2023, WDPC26189 took 14 photographs at the scene (Exh P12(1) to (14)).[8] 26.Admitted in evidence is that on 8 March 2023, PC54754 drew a sketch plan of the scene (Exh P11, with English translation (Exh P11A)).[9] Arrest 27.On 31 March 2023, the defendant was arrested at his residence.[10] Identification of the Male 28.There is no direct evidence that the defendant was the Male. No evidence of the description of the Male, other than his clothing, including his height and built was adduced. Circumstantial evidence 29.The circumstantial evidence from which the prosecution asks the court to draw the inference the defendant was the Male are that the defendant’s Form 8, driving licence and fingerprint were found on VEH 1. ANALYSIS 30.The prosecution seeks to prove the necessary element of dishonest appropriation of VEH 1 by the defendant by means of the fingerprint on the left rear mirror of VEH 1 and the identification documents on it. From the evidence, it was suggested that the fingerprint being caused by the defendant and his identification documents being left on VEH 1 indicated that the defendant had been in control or possession of VEH 1 and therefore had kept or dealt with it as owner. Since a false number plate (with the registration number of VEH 2) was found on the stolen motorcycle VEH 1, the defendant must also have stolen the number plate. It is noteworthy here that there is no evidence at all that the vehicle licence of VEH 2 had ever been stolen as alleged in Charge 2, albeit a vehicle licence displaying registration mark WN3780 was depicted in the photo Exh P12(7) and it appears to have been affixed on VEH 1. 31.No evidence was adduced to show where exactly on the left rear mirror the defendant’s fingerprint was found and by which of the defendant’s fingers it was caused. In my view, the position of the fingerprint is not consistent only with it having been made by someone riding VEH 1. At the most, it can only show that the defendant had ever been in contact with the mirror, which was exposed to passersby. 32.Without doubt, Form 8 and driving licence are important personal documents, the owner of which would normally carry them with him when he is out and about. Also, admittedly, there is no evidence that Exh P3 and Exh P4 (the defendant’s Form 8 and expired driving licence) had ever been reported loss or stolen. 33.The facts of the case were, indeed, highly suspicious. 34.However, no evidence was adduced to show (i) where on VEH 1 the bag (Exh P2) containing the defendant’s Form 8 (Exh P3) and driving licence (Exh P4) was hanging, whether it was on the handle bars or somewhere else; (ii) to whom those items (Exh P5 to P8) in the bag, other than the Form 8 (Exh P3) and the driving licence (Exh P4), including the two mobile phones, the wallet and the family photos, belong; (iii) to whom those miscellaneous items in the storage box of VEH 1, including a bottle of coke and a couple of screwdrivers as can be seen in the photos Exh P12(9) and P12(10), belong; and (iv) the nexus between the Philippines female, who was standing right next to VEH 1 (as shown on the sketch plan Exh P11 indicated as “AP”) when the Male fled the scene, and VEH 1 and why she was there. 35.While it is possible that the Form 8 (Exh P3) and the driving licence (Exh P4) were put onto VEH 1 by the defendant, it is equally possible that they were put onto VEH 1 by the Philippines female or the unknown owner of those items (Exh P5 to P8). Even if it was the defendant who had put them onto VEH 1, his role at the time could be a passenger or a rider. 36.Also, there is no evidence that Mr Wong was not acquainted with the defendant and he had never allowed the defendant to use VEH 1 before. 37.All in all, I am satisfied that the circumstantial evidence relied on by the prosecution points to no more than suspicion that the defendant had been a passenger or a rider of VEH 1, a stolen motorcycle, and on which a false number plate, with the registration mark of VEH 2, was affixed. I agree with Mr Raffell that the defendant was the rider rather than a passenger at some stage is not the only inference that can be drawn, that the defendant stole either VEH 1 or the number plate of VEH 2 is not the only inference that can be drawn, and that even if the defendant had been the rider, there is insufficient evidence for the court to draw the inference that there is dishonest appropriation on his part. 38.The benefit of the doubt is given to the defendant and he is acquitted of both charges.
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