HKSAR v. Bhalla, Ram

HCMA 1043/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.  1043 OF 2004

(ON APPEAL FROMESCC 1477 /2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 19.4.2005

Date of Judgment: 19.4.2005

Date of handing down Judgment: 26.4.2005

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J U D G M E N T

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Background

1.The Appellant was convicted after trial of Theft, contrary to section 9 of the Theft Ordinance, Cap. 221. He was sentenced to a Community Service Order for 120 hours. He appealed against the conviction. After hearing submissions I allowed the appeal, quashed the conviction and set aside the sentence. I now give my reasons.

Prosecution case

2.The Prosecution case, in a nutshell, was that the Appellant stole a mobile phone belonging to PW1, a young lady, at the Clubing Disco (“the Disco”) on 11.1.2004. 

Defence case

3.The Appellant’s case was that he did not steal the phone. He had found it lying around unattended, picked it up and intended to give it to the police.

Grounds of Appeal

4.Mr. Acton-Bond, counsel for the Appellant, raised several grounds of appeal. In essence, Mr. Acton-Bond complained that the learned Magistrate failed to take into account sufficiently the discrepancies between the evidence of the owner of the mobile phone (PW1) and the Nepalese security guard employed by the Disco (PW2); and the discrepancies between the evidence of PW2 given in court and the contents of his previous statement to the police.

5.Mr. Acton-Bond also complained that the learned Magistrate misunderstood part of the evidence of the police officer who first attended the scene (PW3).

Evidence adduced

6.In view of the complaint, it is necessary to set out what the various witnesses had said during the trial.

PW1

7.PW1 is a young woman who was then a second-year student at the University of Hong Kong. On 11.1.2004 PW1 went with some 4-5 friends to the Disco at about 1:20 am. She sat with her friends at the bar counter and placed her mobile phone on the counter. At about 4 am a male came up to her and stood right next to her, offering to buy her a drink. The male then talked to her and one of her friends for 5 –10 minutes. PW1 became annoyed and asked the male to leave her alone. The male did not do so even after she had told him several times. PW1 eventually turned to face the other direction, with her back to the male. When she and her friends were ready to leave some 5-10 minutes later, she found her mobile phone missing and the male who was annoying her was no longer there. No one else had approached the bar counter from the time she turned her back to the male. She made enquiries from the bartender but was not able to locate her phone. She and her party then left the Disco.

8.PW1 tried calling her own phone number but was connected to her voice mail. Later she called her number again and the phone was answered by someone who claimed to be a police officer from the Wanchai police station. She was invited to go to the said police station and she identified the phone (depicted in the photograph exhibit P1) as hers. The phone was returned to her with the SIM card but the battery was missing.

9.PW1 had described the male as ‘a Pakistani male, with dark hair which was a bit curly’. She did not think the male was bald. When she was asked if the Appellant, who was quite bald, was the male who had spoken to her, she said she was quite certain that the Appellant was not the man she had been speaking to.

PW2

10.PW2 was a Nepalese Security guard working at the Disco. He said he noticed an Indian man whom he had never seen before behaving in a strange manner, talking to people in the Disco and asking for cigarettes. He said this Indian male talked to a Chinese girl sitting at the bar counter. That same girl later complained to a bartender that her mobile phone was missing. PW2 identified PW1 as the Chinese girl.

11.PW2 said when he learned of the missing mobile phone, he looked to see where the Indian male had gone. He made enquiries and learnt that the Indian male had not left the premises. He made a check at the toilet. When he looked into one of the two cubicles over the partition, he saw the Indian male sitting on the toilet bowl with a phone in his hand and taking the battery and SIM card out of the phone. PW2 identified himself to the Indian male and asked him to open the door. The Indian male put the phone into his pocket and opened the door after a delay of 1-2 minutes. PW2 then took the male to the lobby and said he wanted to search the Indian male. The Indian male told PW2 he (PW2) had no right to search him and asked for the police to be called. The manager of the Disco came along and gave direction to call the police. While they were waiting at the lobby and just before the police’s arrival, the Indian male suddenly took the mobile phone out of his pocket and threw it onto the ground, shouting “just call the police”. The phone was left there until the police arrived and it was seized by the police.

12.PW2 identified the Appellant as the Indian male and the phone depicted in exhibit P.1 as the phone he saw in the hand of the Appellant. PW2 said he could smelt alcohol from the Appellant.

13.PW2 gave a different version to the police when he was interviewed by the police on 6.4.2004. In his statement he said the male was standing on the right side of the Chinese girl, then the male suddenly rushed into the toilet. PW2 followed suit. The male entered into a cubicle and closed the door. The male held the mobile phone in his hand and took away the battery. There was no mention of the male removing the SIM card. PW2 said in court that the version recorded in his statement was incorrect.

14.The statement given by PW2 to the police was in English. PW2 said when he gave the statement he was at work and in a rush so he did not pay attention. The statement was written by the police but it was read and explained to him. He could not explain why the police had recorded such an incorrect version.

PW3

15.PW3 said on arrival at the Disco the Appellant complained to him in a mixture of English and Punti that the security guard would not let him leave. PW3 went to the toilet to look for the battery of the mobile phone without success. He then found a mobile phone on the ground which PW2 identified to him as having been dropped by the Appellant. PW3 made enquiries from the Appellant and the Appellant told him that he (the Appellant) had found the mobile phone and wanted it to give it to someone. The Appellant told him that having gone to the toilet, he (the Appellant) was pushed by the security guard when he reached the doorway. Under caution the Appellant said that he was bumped against when he walked out to the doorway and the mobile phone dropped. The security guard grabbed him and stopped him from picking the phone up, that was the reason why he made a report to the police - to tell the police that he had found a mobile phone.

16.It was an admitted fact that three telephone calls were made to the ‘999’ number (at 3.06 am, 3.07 am and 3.20 am) from the Appellant’s mobile phone number.

The Appellant

17.The Appellant said he went to the Disco at about 12:30 to 1 am and he had consumed 6-7gin and tonic while he was there. He never spoke to the woman on the evening in question. He denied having sat at the bar counter. He said he sat at different tables some 15-20 feet from the bar chatting to people and only went to the bar to collect his drinks. At about 2 am he went to the bar to get a drink and had to wait 5-7 minutes as the bartender was busy. He then saw a mobile phone on the bar near him but no one was sitting next to him. As he thought someone had left it there so he picked up the phone, intending to give to the police later.

18.The Appellant said he did not hand it to the people at the bar as his past experiences showed that the properties were not returned to the owner. He explained he had lost his mobile phone at a bar on more than one occasion. When he called his own number he was told that the finder would leave the phone at the bar, but when he went to collect his phone he was told it had not been turned in. He thought it would not be appropriate to hand the mobile phone to the management.

19.The Appellant said after he got his drink he returned to the table and sat there chatting with people for some 20-25 minutes. He decided to go home and put the mobile phone in his pocket. He visited the toilet. He said he did not do anything with the mobile phone nor did anyone looked into the cubicle while he was inside, asking him to open the door. After visiting the toilet, he then went to the entrance of the Disco, intending to leave. PW2 stopped him from leaving.

20.PW2 asked the Appellant to go to a room for a search. When the Appellant asked PW2 why PW2 did not reply. The two had an argument and the Appellant refused to let PW2 search him. PW2 told the Appellant that he (the Appellant) was suspected to have stolen something. The Appellant then took the phone out of his pocket but said to PW2 that he would not give it to him at that time. Someone (described as a white male by the Appellant) came over and a scuffle involving him, PW2 and the white male occurred. The Appellant said they wanted him to hand over the phone but he refused. The Appellant said he would hand the phone to the police himself. During the scuffle the Appellant bumped into a lectern and the phone dropped to the ground. The Appellant used his own mobile phone to make three calls to the police, saying that someone wanted to hurt him. Eventually the police came. The Appellant said he was affected by the drinks he had consumed in the course of the evening. He said he intended to hand the mobile phone to the police but had not thought when and how he was going to do it.

21.The Appellant said he had been losing his hair since he was 23 and he did not have curly hair. He produced a photocopy of his identity card issued to him in October 2003 with his photograph (Exhibit D1). It can be seen that he was quite bald (same as when he appeared before me).

Findings by the learned Magistrate

22.The learned Magistrate in her Statement of Findings said the issue in question was whether the Appellant intended to dishonestly appropriate the mobile phone to himself. She found the Prosecution witnesses honest and credible who each tried to give the Court a full account of what had happened that evening. The learned Magistrate was satisfied that PW1 was mistaken when she said the Appellant was not the one who had spoken to her. The learned Magistrate accepted PW2’s evidence that it was the Appellant who had spoken to PW1. The learned Magistrate found that PW2 was in a hurry and did not pay attention to what was recorded in his previous statement when it was read over to him.

23.The learned Magistrate said PW3 testified that the Appellant had told him he was pushed by the security guard when he was in the toilet, and that such evidence was not challenged.

24.The learned Magistrate did not find the Appellant an honest witness and rejected the Appellant’s evidence.

Judgment

25.An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so: see CHOU SHIH BIN v HKSAR, FACC No. 11 of 2004.

26.PW1 is a young woman who found the ‘Pakistani male’ annoying. That male had been speaking to her and her friend for 5 or 10 minutes. PW1 described the male as having dark and slightly curly hair. She was quite certain that the Appellant was not the male. As I have said, the Appellant was quite bald. There is no evidence that the Appellant was wearing a wig with dark and slightly curly hair at the time. It is hard to see how a young woman would fail to notice such a distinctive feature on a male who has been annoying her for a while!

27.From PW1’s description, no one other than that annoying male had approached the counter from the time she turned her back to the male until she decided to leave and found her mobile phone missing. A reasonable inference to be drawn is that it was that male who had taken her phone. She made enquiry with the bartender with no success and she had already left the Disco before she called her own number and was finally connected  to the police.

28.The only evidence linking the Appellant with the male who had been annoying PW1 came from PW2. PW2 in a statement given about 4 months after the incident described the male, who was standing on the right side of the Chinese girl, suddenly rushed into the toilet. That was quite different from his version in court: how he came to learn about the missing mobile, started to make enquires around the Disco to see if the Indian male he had been watching earlier had gone and eventually found the male in the toilet.

29.Clearly PW2’s version in the statement did not tally with PW1’s evidence. The fact that PW1 had left the Disco after failing to find her mobile phone indicated that the Appellant could not have been standing on the right side of the Chinese girl and then suddenly rushed to the toilet as stated in the statement. I appreciate the learned Magistrate accepted PW2’s explanation that he was in a rush at the time and did not pay attention. PW2 claimed that English is his language (though I noted that the learned Magistrate and Mr. Acton-Bond found him difficult to understand at times). He was describing to the police what had happened. The contents were read back to him in English. He could not explain why the police had written down such a version which he claimed to be incorrect in court.

30.The fact that there were such significant differences between PW2’s evidence in Court and when compared with his previous statement, coupled with the fact that PW1 clearly stated that she was quite certain the Appellant was not the male who had been annoying her, there must exist a reasonable doubt whether the Appellant was indeed the male who had spoken with PW1 and had the opportunity to take the phone (according to the description of PW1).

31.It was not in dispute that the Appellant had the mobile phone in his possession. If PW2’s version in court were to be believed (i.e. he started looking for the Appellant after he learnt of the missing phone), one reasonable inference to be drawn is that the male who has been annoying PW1 (who was not the Appellant) had taken the phone while PW1 was in the Disco and later returned it to the counter after PW1 had gone. The Appellant then came upon the phone and took it in his possession.

32.The Appellant did not deny that he had taken the phone to the toilet and that he was inside a cubicle. He denied PW2’s assertion that he had removed the SIM card and battery from the phone, or that PW2 saw and spoke to him over the partition of the cubicle. He described how the phone came to be lying on the ground – a version quite different from that given by PW2.

33.The missing battery was a mystery. PW2’s evidence was that the Appellant was seen removing both the SIM card and the battery from the phone inside the toilet cubicle when he told the Appellant to open the door (it should be noted that in his statement he mentioned the Appellant removing the battery only, there was no mention of the removal of the SIM card). PW2 then described the Appellant keeping the phone inside his pocket. There was no description by PW2 of the Appellant putting either the SIM card or the battery back onto the phone. PW2 later described the Appellant throwing the phone to the ground. The SIM card was with the phone when PW1 identified it but the battery was missing. PW3 said he could not find the battery in the toilet. Yet when PW1 called her own number the phone was answered by someone who claimed to be a police officer. It may be that another battery was put on the phone at the police station but there is no such evidence before the court. All these throw doubt on the reliability of PW2’s evidence regarding what had taken place inside the toilet.

34.I fully appreciate the learned Magistrate had the advantage of hearing and seeing the witnesses in Court during the trial while I am relying on the transcript only. While the learned Magistrate is entitled, having seen and heard PW2, to find him an honest witness, I do not see how he can be described as a reliable witness when his evidence in court was contradicted by his own previous statement and the evidence of PW1.

35.As to the evidence of the Appellant, the learned Magistrate is entitled, having seen and heard the Appellant, to find him unimpressive and dishonest. However, the learned Magistrate did make a mistake regarding the evidence of PW3 about what the Appellant had told him when he made enquires from the Appellant. The learned Magistrate stated that the Appellant told PW3 that he was in the toilet when he was pushed by the security guard. The learned Magistrate also said that this part of the evidence was not challenged. PW3 did not say that. He said the Appellant told him that having gone to the toilet, the Appellant was pushed by the security guard when he reached the doorway. The Appellant has made it clear in his case that it was after he visited the toilet, he then went to the entrance of the Disco when PW2 stopped him from leaving.

36.The learned Magistrate’s misunderstanding of PW3’s evidence in this regard could have an unfair detrimental effect in the learned Magistrate’s mind when she came to evaluate the evidence of the Appellant.

37.Having read and considered all the evidence in the present case, while there is no doubt that the Appellant was in possession of PW1’s phone, there is no cogent evidence from the Prosecution as to when and how, in other words, under what circumstances, the Appellant came to acquire the mobile phone. The Appellant’s explanation that he did not trust the management of the Disco and had decided to give the phone to the police upon finding it is not unreasonable or incredible. One also has to bear in mind that the Appellant had consumed a quantity of alcohol. In my judgment, there is no cogent evidence to prove that the Appellant had appropriated the phone dishonestly with the intention to permanently deprive PW1 thereof.

38.For these reasons I allowed the appeal, quash the conviction and set aside the sentence imposed.

Mr. TAM Man Fai, Simon, Senior Government Counsel for the Respondent

Mr. Jonathan Acton-Bond, instructed by DLA for the Appellant