HKSAR v. Sandagdorj Altankhuyag and Another

DCCC 941/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 941 OF 2012

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Reasons for Verdict

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1.The defendant, who is the 2nd defendant on the charge sheet, faces a charge of theft jointly with the 1st defendant on the charge sheet.

2.The charge alleges that on 22 September 2012 he and the 1st defendant at a bar known as La Dolce Vita 97 in Lan Kwai Fong stole a handbag and its contents belonging to a young female customer of the bar.

3.The evidence from the prosecution came from Police Constable 3892 of Task Force Central, who was on plain clothes duty in Lan Kwai Fong in the early hours of that morning.  His evidence was that he first saw the two defendants when he was in the street outside No. 9 Lan Kwai Fong, the address at which La Dolce Vita 97 was situated.  They were walking down Lan Kwai Fong from the southern upper end of the street in his direction. He saw the 1st defendant go to the doorways of two or three bars and look inside, while the defendant, who was walking alongside him but about two to three metres away towards the other side of the street, kept on looking around. 

4.The two men reached the outside of La Dolce Vita 97 Bar at No. 9 Lan Kwai Fong, which was a bar open to the street with high bar stools on the street facing a semi-circular bar table.  At this point the defendant pulled the arm of the 1st defendant with his left hand and pointed towards the inside of the bar.  The 1st defendant nodded, then the defendant walked to the pavement outside No. 7 Lan Kwai Fong which was adjacent to No. 9 but further down the street while the 1st defendant went into the bar and sat three seats away from the victim of the charge.

5.The victim was sitting on one of the bar stools beside the bar adjacent to the street but was not facing the bar table but in a northerly direction.  On the stool next to hers, which was then behind her, was her handbag.  While seated, the defendant looked around inside the bar and then turned to look at the victim.  He kept looking at her before getting up and then going to the outside of No. 7 Lan Kwai Fong and joining the defendant.  He had been seated in the bar for about 2 minutes before he left. 

6.He and the defendant had then chatted for 10 to 20 seconds.  Both men then walked to the bar area of La Dolce Vita 97 and stood about a foot away from the victim’s handbag facing the bar.  The defendant looked at the 1st defendant and then turned his head to face the direction of the victim’s handbag.  He then turned his face towards the defendant and turned back to the victim’s handbag indicating it with a nod to the 1st defendant.  The 1st defendant in turn nodded to him.  The defendant then moved so that he was standing facing the street with the handbag directly behind him.  The 1st defendant approached the south side of the stool on which the handbag was placed and looked in the direction of the handbag.  The 1st defendant then took the handbag.  He then patted the left forearm of the defendant with the handbag.  The two men then walked up Lan Kwai Fong at a quick pace.

7.After taking the bag, the 1st defendant concealed the handbag underneath the jacket he had over his arm.

8.When the two men were intercepted by the officer and his colleagues the 1st defendant was holding the victim’s bag.  After opening the handbag, the officer examined its contents, which included the passport of the female victim.  He had then gone back to La Dolce Vita 97 Bar to confirm with the victim that it was hers.

9.The defendant, who is from Mongolia, gave evidence.  He has been in Hong Kong for 2 years and is a torture claimant. His account is that while he was with the 1st defendant in Lan Kwai Fong at the material time he was not involved with and indeed had no knowledge of the theft of the handbag by the 1st defendant. 

10.His evidence was that on 22 September he had taken four friends who were visiting Hong Kong to Lan Kwai Fong.  After leaving his friends and walking for about 10 to 20 minutes on his way back to the place where he lived in the Jordan area he received a call on his mobile phone from the 1st defendant.  The 1st defendant was someone he had known when they were young as they came from the same home town.  He had met the 1st defendant by chance in Mirador Mansion 3 days earlier on 19 September and given the 1st defendant his telephone number. 

11.In his evidence-in-chief the defendant said that in the call from the 1st defendant on 22 September the 1st defendant had asked the defendant if he was in Lan Kwai Fong because he had lost his friends in Lan Kwai Fong and asked the defendant to help him find them.  He told the defendant he did not speak English.

12.Despite the fact that he was not in Lan Kwai Fong the defendant had then walked back to Lan Kwai Fong and had met the 1st defendant at a taxi stand around the corner from the south top end of Lan Kwai Fong.  He had chatted with the 1st defendant.  He found that he knew one of the 1st defendant’s friends called “Nor Boo”. 

13.Since it was raining, the 1st defendant had given him an umbrella, which he opened and held in his left hand.  Before turning to enter Lan Kwai Fong the 1st defendant had entered one bar to look for his friends.  They had both then turned into Lan Kwai Fong itself.  Because it was raining people were standing in the entrances of bars.  He was holding the umbrella in his left hand and had his right arm around the 1st defendant’s shoulders.  They were looking to the right and left for the 1st defendant’s friends.  The 1st defendant then entered La Doce Vita 97 Bar to look for his friends while the defendant walked down to the bottom of Lan Kwai Fong to a position near the 7-Eleven store.  When he was there he looked back towards La Doce Vita 97 Bar and saw the 1st defendant approaching him.  D1 had then suggested that they go back to the top of the street as he and his friends had been at the top of the street.  They walked up the pavement on the east side of Lan Kwai Fong to La Dolce Vita Bar. 

14.The 1st defendant had entered the bar but the defendant did not enter as he received a call on his mobile phone from a friend in Mongolia.  During the course of his evidence, the defendant was offered his mobile phone by his counsel in order for him to identify a record of this call from Mongolia but the defendant said that since the call was made on an international dialling card there would be no record. 

15.After finishing the call the defendant said he saw the 1st defendant coming out of the bar.  He saw the 1st defendant dialling on his, the 1st defendant’s, mobile phone.  The 1st defendant had put a phone to the defendant’s ear and said that if any of the 1st defendant’s friends answered the defendant should ask them where they were.  The defendant took the 1st defendant’s phone and waited for an answer while the 1st defendant walked down the steps behind him.  The 1st defendant’s friends did not answer the call so the defendant redialled them.  He then saw the 1st defendant walking back up the street so he joined the 1st defendant and they walked a short distance together.  It was at this stage that the police intercepted them.

16.He said that he was not involved in the theft of the victim’s handbag and only saw the handbag when the police found it in the 1st defendant’s possession.

17.At an early stage of his evidence the defendant requested that Mrs Tsolmon, the court Mongolian interpreter, be replaced by Mr Turbileg, the interpreter who had been engaged by the Legal Aid Department to assist the defence but who is qualified to act as a court Mongolian interpreter.  He had been present in court throughout the trial as part of the defence team.  I regarded it as inappropriate that an interpreter who was acting in this case as part of the defence team become the court interpreter. I was informed that there was a third interpreter in Hong Kong who is qualified to act as a Mongolian interpreter in court proceedings but the defendant said that he did not want this person to act as the court interpreter, he only had confidence in Mr Turbuleg.  In order to resolve the matter I directed that if Mr Turbuleg wished to challenge the interpretation of Mrs Tsolmon or suggest a more appropriate translation he should do so.  This was a course that met with the approval of Mr Ng for the defendant.  Mr Turbuleg did assist Mrs Tsolmon with the appropriate translation on a very few occasions.  In such circumstances, I was satisfied that there was no issue that the defendant’s evidence had not been or was not being correctly translated.

18.I turn now to my analysis of the evidence.

19.It has not been in dispute that the 1st defendant stole the handbag of the victim as she was sitting at the bar of La Dolce Vita 97 with the handbag on an adjacent barstool.  The issue in this case is whether the defendant was party to the theft.

20.The prosecution case that he was so involved rests on the evidence of Police Constable 3892, PW1, as to his observations that night.  In assessing the evidence of Police Constable 3892 I considered an allegation made by Mr Ng for the defendant that that officer was found to have lied by the magistrate in a similar case in Eastern Magistracy case ESCC 1016/2012, the trial of which occurred on 23 May 2012, four months before this present case occurred.  The trial before me was adjourned so the record of those proceedings could be obtained, but on the basis of being informed by Mr Ng that the magistrate had said that the evidence of PC3892 was discredited, in the meantime I allowed Mr Ng to cross-examine the officer on that aspect.  The record of the trial of ESCC 1016/2012 was later produced as part of the defence case. 

21.ESCC 1016/2012 was a case that involved an allegation of theft of an iPhone by the female defendant.  The evidence of the alleged victim was that he had been drinking on the night in question.  After leaving Lan Kwai Fong, he had sat down, and whilst seated, gone on to Facebook on his iPhone for about 10 minutes before he fell asleep.  The next thing of which he was aware was when a group of police officers approached him, asking if he knew that his iPhone had been stolen. 

22.PC3892 gave evidence that he saw the defendant walk past the sleeping victim who was on the stairs leading from Pedder Street into Wheelock House.  He said that the defendant then stopped and then walked back to the victim, took the iPhone from his hand and then put it into the pocket of her jacket.  She had then continued for a short distance on Pedder Street before he stopped her.  She was holding the iPhone and he asked her if it was hers.  She had said nothing.  He had then taken the iPhone back to the victim, who identified it.  Later, after her arrest, the female defendant claimed that she had just picked up the phone in the street and was looking at it when the police approached her.

23.The property manager of Wheelock House gave evidence that there was a motion sensor activated CCTV camera which captured the entrance of Wheelock House.  He produced CCTV footage which showed the victim sitting at the top of the steps and being approached by the police but the CCTV footage showed no earlier images of the defendant approaching the victim and taking the iPhone from his hand.

24.At the conclusion of the prosecution case Mr Pickavant, who appeared for the defendant, made a submission of no case to answer on the basis that if it had been a jury case it would not have been proper to leave it to the jury.  The magistrate found no case to answer.  He said this,

“Very briefly, I find that Mr Poon’s evidence, (i.e. the evidence of the property manager of Wheelock House) and also the evidence of the CCTV discredited the whole of the prosecution case.”

25.Although these words taken in isolation might suggest that he did not believe the evidence of PC3892, bearing in mind that this was a submission of no case to answer, I find that he simply was saying that bearing in mind the conflicting evidence called by the prosecution, a jury properly directed could not convict on it.  This is borne out by his remarks when ruling on the defence application for costs when he said,

“The prosecution case crumbles with inconsistent evidence available to them.”

26.Although the magistrate must clearly have felt on the evidence before the court that the fact that the CCTV camera had not been activated by the defendant approaching the alleged victim raised the possibility that PC3892 was not telling the truth, I am satisfied he did not make a finding that that was the case. 

27.When it was suggested to PC3892 in cross-examination in this trial that he had lied in the previous proceedings and that the magistrate had made that finding, he denied both allegations and said that it was a problem with the CCTV camera in that case. 

28.It has to be borne in mind that there was nothing to contradict the victim’s evidence in that trial that he had been playing with the iPhone as he was walking along and then for about 10 minutes before he went to sleep.  If that is the case, there is no explanation if the CCTV camera was working properly why it did not reveal how the iPhone had travelled from his hand, or if he had dropped it from a position alongside him, to a position on the street outside the area covered by the CCTV camera where the defendant claimed she had picked it up.  There is also no explanation on the written record of proceedings as to why, if the defendant had found the iPhone in the street, the police should have approached the alleged victim, a man sleeping on the stairs of Wheelock House, with the phone. 

29.I find that the magistrate made no finding that PC3892 lied in the magistracy proceedings, but nonetheless, out of an abundance of caution I have borne the circumstances of that case in mind and considered his evidence in this trial with particular caution.  Having done so, I found that there was nothing in the officer’s evidence of the events that night that caused me to have the slightest doubt as to his truthfulness.  He is an intelligent and articulate officer, who impressed me as being both reliable and truthful in describing what occurred. 

30.I found I could attach no weight to the evidence of the defendant.  I have no doubt that he was not telling the truth about his involvement in the events that night.  His evidence as to why he was in Lan Kwai Fong that night radically shifted in the course of his evidence.  His original account, that the 1st defendant had asked him to go there to help the 1st defendant look for his friends, adding that he spoke no English, itself an unlikely explanation for his presence, changed in the course of cross-examination.  He then maintained that the relevance of him being able to speak English was not related to the finding of the 1st defendant’s friends.  (Indeed, he had not accompanied the 1st defendant into bars to look for the 1st defendant’s friends) but was so that he could assist the 1st defendant to talk to a taxi driver.  He then said that the 1st defendant wanted him to accompany him to look for his friends but did not need his assistance in looking for his friends.  The reason he had accompanied the 1st defendant was that if the 1st defendant could not find his friends, he could then help him book a guest house.  He maintained the 1st defendant was not able to find his way on his own.

31.Not only did this represent a shift in his explanation as to why he was with the 1st defendant, but it was wholly implausible.  The 1st defendant on his account was someone he had met late in the evening three days earlier in Mirador Mansions and who had presumably been able to find somewhere to stay on that occasion.  Moreover, according to the defendant, the 1st defendant had told him that he had entered Hong Kong from Shenzhen the previous evening.  The suggestion that someone who had entered Hong Kong for a second time on 21 September and managed to come to Lan Kwai Fong that evening but was incapable of finding somewhere to stay without the defendant’s help is not credible.

32.I did not believe his explanation as to why he should have been outside La Dolce Vita 97 Bar at the time when the 1st defendant must have stolen the handbag.  On his account, the 1st defendant had already looked for his friends inside that bar before walking down to the bottom of Lan Kwai Fong, meeting up with him, and then telling him that his friends were not in that area but the top of the street.  On that basis, there was no reason therefore why they should stop at La Dolce Vita 97, which was not at the top of Lan Kwai Fong, and into which, according to the defendant, the 1st defendant had already been to search for his friends.  The defendant’s account then shifted.  He said that the 1st defendant had said that his friends might be in the middle or top of the street. 

33.I did not believe it, nor did I believe the defendant’s explanation that the reason he was standing outside the bar was to receive a telephone call from someone in Mongolia who just happened to call him at that hour in the morning.  It came as no surprise to me that when asked by his own counsel to find a record of that call on his mobile phone he should make excuses as to why there would be no record.  He could give no explanation as to why on his account the 1st defendant, having dialled the number, should have put his, the 1st defendant’s mobile phone to the defendant’s ear, giving him the phone, saying, “If my friends pick up the phone, ask them where they are.”  The 1st defendant’s friends were Mongolian.  There was no reason the 1st defendant should himself not speak to them and ask them where they were.  On his account, the 1st defendant had then walked away and when he returned had not even asked him whether the defendant had managed to speak to his friends. 

34.I am satisfied that the reason why the defendant gave this implausible account of events that night is that he was covering up his involvement with the 1st defendant in the theft of the handbag. 

35.I am satisfied that PC3892’s evidence as to his observations of the defendant that night is both honest and accurate. 

36.I am satisfied beyond reasonable doubt that the defendant was party with the 1st defendant to the stealing of the handbag that night.  He assisted the 1st defendant in looking for suitable targets for theft and helped him by identifying this particular handbag and shielding the handbag from view when the 1st defendant took it.

37.I find the defendant guilty of the offence charged.

Please refer to CACC45/2013 for the relevant appeal(s) to the Court of Appeal.