HKSAR v. Shahid Imran Younas

DCCC1192/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1192 OF 2011

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Reasons for Verdict

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1.The defendant is charged with one count of theft. The prosecution’s case is that the defendant climbed onto the podium at the rear lane of No.209 Ki Lung Street to dismantle and steal an air-conditioner on the podium of No.211 Ki Lung Street.

2.The defendant denied that he had ever climbed onto the podium, dismantled or stolen the air-conditioner.  He explained that he was only looking for a toilet to answer a call of nature.  This is a criminal court. I remind myself that the onus is on prosecution to prove the charge beyond all reasonable doubt.  If there were any reasonable doubt, that benefit of that doubt must go to the defendant.

3.Although the issue of the defendant’s identity is not in dispute in this case.  The accuracy of PW2’s observation were in dispute and I remind myself of the principles and directions in the case of R v Turnbull.

4.This was a very simple case.  The prosecution called three witnesses.  The defendant elected to give evidence.  Part of the prosecution’s case was not in dispute.  The facts admitted by the parties under section 65C of the Criminal Procedure Ordinance, Cap.221 was produced as P7. 

The prosecution’s evidence

5.In the late evening of 7 October last year, the police mounted an anti-theft operation in the vicinity of Nam Cheong Street near Ki Lung Street, Shamshuipo, Kowloon, Hong Kong.  PC58544 (PW2) was assigned to an observation post on the rooftop of No.84 Nam Cheong Street to monitor the rear lane at No.1L Shek Kip Mei Street (the Rear Lane). 

6.The area under observation is depicted in a sketch prepared by PW2 and produced as P6 and P6A (see paragraph 9 of P7).  The height of the rooftop was about 15 to 20 metres.  PW2’s team members included PC9308 (PW3), PC4588, PC4724, Sergeant 928 and PC3137, they were on plainclothes patrol in the vicinity.

7.The height of PW2’s observation post was about 15 to 20 metres.  They were no street lighting in the rear lane.  However, apart from the ground floor unit, the units in the building at No.211 Ki Lung Street were occupied for domestic premises purposes (see paragraph 10 of P7) and there was light emitting from these residential units. 

8.At about 2325 hours on the same date, PW1 saw a male on Shek Kip Mei Street near one end of the rear lane.  The male was about 40 metres from PW2.  Because of the dim lighting and the distance, PW2 could only see the male’s silhouette.  The male had a two-wheeled metal handcart (the Handcart) and was looking around at the entrance of the rear lane.  PW2 felt suspicious.  He immediately notified his other team members through his radio. The male kept looking around as he pushed the handcart into the rear lane in PW2’s direction. 

9.The male then stopped at the rear lane outside No.211 Ki Lung Street.  He left the handcart and walked back to the rear lane outside No.209 Ki Lung Street, looked around several times before climbing up to the podium of No.209 Ki Lung Street.  The male walked along the podium to No.211 Ki Lung Street. The male was now about 10 to 15 metres from PW2 and the lighting was better.  PW2 could see his profile, but was unable to see his facial features.  PW2 felt even more suspicious, he immediately requested his team members to come and seal off the three entrances of the rear lane. 

10.In the meantime, the male walked up to an air-conditioner installed on the podium of No.211 Ki Lung Street (the Air-conditioner), bent down and started to shake the air-conditioner.  After shaking and stepping on the air-conditioner for about 8 to 10 minutes, the male managed to dismantle the air-conditioner from its mounting.  By then PW2 had received notification from his team members that they have arrived and had sealed off the three entrances of the rear lane. 

11.PW3 was stationed at the entrance near 234 Tai Man Street with PC4588.  The male then carried the air-conditioner to the edge of the podium, pushed it over and the air-conditioner landed onto the ground with a crash.  The male then walked back to the podium of No.209 Ki Lung Street, climbed down to the ground and placed the air-conditioner onto the handcart.  PW2 immediately requested his team members to enter the rear lane to intercept the male. 

12.PW3 was one of the first police officers to enter the rear lane.  Both PW2 and PW3 stated that apart from the police officers, the male was the only person inside the rear lane at the time. 

13.PW3 saw the male who had his back towards PW3, bending over the air-conditioner inside the rear lane.  PW3 immediately shouted “Police” in Punti and lit his torch.  When PW3 saw the male was non-Chinese, he shouted “Police” again in English.  After a body search and initial enquiries, PW3 declared arrest on the male for the offence of theft and cautioned him in Punti. There was no dispute that the defendant was the male arrested (see paragraph 1 of P7).

14.PW2 confirmed that the male arrested by PW3 was the male who took the air-conditioner.  There was also no dispute that under caution that the defendant said in Punti, “Ah Air, I did not steal anything.  I just urinated.” (see paragraph 2 of P7).

15.At about 2340 hours on the same day, PC3137 seized the handcart, the air-conditioner and two broken parts of the air-conditioner as exhibits.  They are produced respectively as P1 to P3 (see paragraph 3 of P7).  There was no dispute that the air-conditioner was at all material times installed on the podium of No.211 Ki Lung Street and that it had been dismantled from that podium (see paragraph 4 and 6 of P7).

16.Fanta Time Industrial Limited (Fanta) was established in the 1980s.  Miss Luk Kit-wah (PW1) has always been a director and the person in-charge of Fanta.  She was also the authorised signatory of Fanta’s bank accounts and had access to all of Fanta’s books and records.  There was no dispute that Fanta was the owner of the air-conditioner (P2).  PW1 stated that P2 was purchased by her about 4 to 5 years ago for about $5,000 odd. 

Defence evidence

17.The defendant stated that he lived in Tai Kok Tsui.  On 7 October of last year, he left home at about 7.30 pm and was arrested when he was on his way to meet friends.  He later stated that he had been sleeping outside for several days prior to his arrest.  That evening, he was going to visit a friend who lived near Shek Kip Mei street but he decided to go to the bathroom before going to his friend’s home two lanes away and was trying to look for a toilet.

18.He denied that he had even entered the rear lane in examination-in-chief.  He stated that he was arrested before he even entered the rear lane.  He also denied that he ever gave any explanation to the police. He denied that he had climbed up to the podium or that he had dismantled the air-conditioner. 

19.Under cross-examination, the defendant admitted that he was familiar with the area and that he knew that there was a public toilet nearby.  At one stage, he appeared to admit that he was arrested at rear lane outside No.211 Ki Lung Street.  However, he later stated that he was arrested just after he had entered the rear lane which was some distance from No.211 Ki Lung Street.  He also denied that he spoke Punti.

Submissions

20.Counsel submitted that PW2 was on the rooftop for unexplained reasons.  The police had mounted an anti-theft operation and were on the look-out for thieves.  When they saw a Pakistani looking around and entering the rear lane, they immediately came to a premature conclusion that the defendant was up to no good and took action.  By coincidence, someone had already dismantled the air-conditioner and placed it on the handcart.

21.In short, the defence is alleging that the team of police officers are conspiring to pervert the course of justice and perjure themselves.

22.Counsel submitted that it was bizarre to suggest that the defendant would steal an air-conditioner and throw it to the ground. The defendant’s explanation was reasonable.  There was a possibility that the defence’s case were true, the court was duty-bound to acquit.

23.I have considered the evidence and the submissions very carefully.  PW1’s evidence was basically not in dispute.  She was merely called to tell the court the value of the air-conditioner when she bought it.  I found her to be honest and credible.  I accept her evidence.  PW2 and PW3’s evidence was clear and direct.  They were unshaken in cross-examination and were wholly consistent with each other. 

24.Counsel suggested that there was some kind of prejudice against Pakistanis.  However, according to the evidence, which was never challenged, the area was quite dim and PW2 and PW3 were only able to see the defendant’s silhouette.  There was no way that they could tell the nationality of the defendant prior to his arrest.  Counsel suggested to PW2 that the air-conditioner was already on the handcart before the defendant’s arrival in the rear lane.  This suggestion is contrary to paragraph 6 of the Admitted Facts (P7).

25.I understand that the lighting in the rear lane was very dim at the time of the alleged offence.  Although the defendant’s identity was not in dispute, this case turns on the credibility of PW2’s observations of the defendant’s actions.  PW2 may not have been able to see the defendant’s facial features in the circumstances.  However, he told me he was able to see the defendant’s silhouette and could also hear the crash when the air-conditioner fell to the ground.  The defendant’s actions may well have damaged the air-conditioner.  However, it was not for PW2 to explain the defendant’s action, he can only recount what he saw at the scene.

26.I found PW2 and PW3 to be honest and credible witnesses. I accept their evidence.  I did not believe the defendant. His evidence was confusing, evasive, self contradictory and contrary to the Admitted Facts.  His evaded questions even when put by his own counsel.  Initially, he stated that he was arrested outside the rear lane.  He later changed his evidence when he was reminded of the Admitted Facts and admitted that he was arrested inside the rear lane.  However, he still disputed the location of his arrest.  There was no dispute that he denied the offence and stated that he was merely answering a call of nature under caution.  However, the defendant stated that he never even had a chance to speak to the police officers.  There was no dispute that he spoke to PW3 in Punti but the defendant denied that he spoke Punti.

27.I found the defendant to be thoroughly dishonest and incredible.  I reject his evidence.  I find the charge proved beyond all reasonable doubt.  The defendant is accordingly convicted.