HKSAR v. Man Got Wang

DCCC827/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 827 OF 2012

----------------------

----------------------

---------------------

Reasons for Verdict

---------------------

1.The 1st and 2nd defendant of this trial were jointly charged with one count of theft, contrary to section 9 of the Theft Ordinance, Cap.210.

2.The 2nd defendant pleaded guilty before trial to Charges 1 and 2 to 3, which were driving-related offences.

3.The particulars of Charge 1 are that the 1st and 2nd defendants jointly stole a medium goods vehicle, NH 5495, between 25 and 26 June 2012 in Sheung Shui, meaning in the dead of night.

The prosecution’s case

4.The prosecution relied on, firstly, the 2nd defendant’s evidence against the 1st defendant.  The 2nd defendant gave evidence as a prosecution witness, the only prosecution witness.

5.He explains in detail how he came to Hong Kong invited by the 1st defendant and taught how to steal a vehicle.  The 1st defendant then led him back to his yard as the 2nd defendant drove the stolen vehicle in the middle of the night.

6.Secondly, the prosecution rely on circumstantial evidence to infer the 1st defendant was involved with the theft, such as where the 1st defendant was stopped, where the stolen vehicle was hidden and how the licence plates were being removed and when.

7.I shall elaborate on the prosecution’s evidence.

8.What was not disputed was exhibited as Exhibit P1 and P14, two sets of admitted facts.

9.In Exhibit P1, the defence did not challenge the prosecution’s evidence that the 1st defendant was found seated alone in his car parked at the roadside of Deep Bay Road, Lau Fau Shan, at 3.22 am.

10.In his vehicle, the police found four vehicle licence plates, gloves and tools.

11.The 1st defendant also had possession of a bunch of keys, 14 in total.  He remained silent when asked about these keys.  The police, however, discovered one of the keys opened a locked gate of an open-air yard 100 metres away from where the 1st defendant had parked his vehicle.

12.At 4.15 am in that yard, the police found a man changing the licence plates of NH 5495, the stolen vehicle.  This vehicle was last seen by its owner at 8 pm the night before.  There were similar tractors, heavy good vehicles, in the yard, a total of 12, including the stolen vehicle.

13.The ignition lock of the stolen vehicle was damaged and it obviously had been driven away without using a key.

14.At 5.40 am, the police arrested the 1st defendant and he replied, under caution, that he did not know it was a stolen vehicle.  He said that a friend had called and had a vehicle for the 1st defendant to resell.  The 1st defendant had come back to the yard to see this vehicle.  The actual owner of the yard had allowed the 1st defendant to use it as his own and had done for many years.  The 1st defendant had control over the yard.

15.Several photo albums were not challenged - Exhibits P2 to 6 - and show the yard, the heavy good vehicles, the containers used as living quarters and the contents of the 1st defendant’s private vehicle.

16.There is a sketch of the layout of the yard (Exhibit P7).

17.Exhibits P8 to 10 consist of two video records of interviews conducted on the 1st defendant on 27 June from 3.12 am and later at 9.37 pm respectively. Their voluntariness was not challenged. The transcript, translations are Exhibit P9A and P11A respectively.

18.Exhibit P14, the second set of admitted facts, confirmed the shirt of photograph 6 of Exhibit P4 was the one worn by the 2nd defendant at the time of his arrest and the theft of the vehicle.  The shirt pocket sewn on was relevant to the 2nd defendant’s evidence.

19.Also, the telephone number of the mobile used by the 1st defendant at the time of his arrest was agreed to be 92187077.

The 2nd defendant’s evidence

20.He gave evidence that he met the 1st defendant in 2011 and referred to him as “Man Gor”.  He met him through a clansman who had access to the 1st defendant’s yard.  When the 2nd defendant returned to China, he had the 1st defendant’s contact telephone numbers in his mobile phone recorded as “Man Lo Ban” and “Man Yee Lo Ban”.

21.On 15 June 2012, the 2nd defendant said the 1st defendant called him in China and asked if he had any work at that time.  He told the 2nd defendant to come to Hong Kong and he would find him something to do.

22.The 2nd defendant came, arriving on the morning of 19 June 2012.

23.He described in great detail the instructions he received from the 1st defendant, such as buying a Hong Kong SIM card on arrival, going from Lo Wu to Tin Shui Wai to wait for the 1st defendant to pick him up, and then arranging for the 2nd defendant to sleep in a container in the yard in Lau Fau Shan.

24.Later, the 1st defendant then told the 2nd defendant that if he stole a vehicle - and the 1st defendant would teach him how to steal it - he would be given a $5,000 reward.

25.On 25 June, the 2nd defendant was in the 1st defendant’s vehicle late at night and they proceeded to Sheung Shui to pick up the 1st defendant’s friend.  He was then taken to the vehicle that the 2nd defendant eventually broke into and drove away.

26.The 2nd defendant gave detailed evidence of the evening and how he came to steal the heavy goods vehicle.  The 2nd defendant gave detailed evidence of how the 1st defendant taught him to open the vehicle door with a tool.  He taught him how to remove the ignition lock so he could start the vehicle.

27.It took the 2nd defendant a long time to eventually successfully break into and start this vehicle.

28.Before that, the 1st defendant had given him one of two mobile telephones and both used them to keep in telephone contact.  The 1st defendant had taken the 2nd defendant’s own mobile phone and put it in his vehicle’s glove box.

29.The 2nd defendant later took the police to the 1st defendant’s vehicle to recover his own phone where he had left it.

30.The 2nd defendant put the mobile phone the 1st defendant gave him in his shirt pocket and used headphones to communicate, freeing up his hands.

31.The 2nd defendant watched the 1st defendant put two SIM cards into those two mobiles that he produced.

32.After he broke into the vehicle, the 1st defendant told the 2nd defendant how to wait for the air to pump up this vehicle before he could put it into gear.

33.The 1st defendant then told him by telephone where to drive to and it was there the 2nd defendant saw the 1st defendant’s vehicle in front of him and followed.

34.Later on, the 1st defendant pulled over and the 2nd defendant pulled over behind him. The 1st defendant then came up to the vehicle and took away the tools he had previously given to the 2nd defendant.

35.He told the 2nd defendant to wait whilst while he went home first.  When he called, the 2nd defendant was to drive to the yard because the coast was clear and the area safe.  He had told the 2nd defendant he would act as a lookout.

36.The 2nd defendant then drove to the yard where the gates were already opened.

37.Once inside, the 2nd defendant closed the gates behind him and went into one of the containers to sleep.  He was then not long after arrested by police who had come into the yard.

38.The 2nd defendant described the 1st defendant as a friend, but also as a boss or employer.  He says this because the 1st defendant indicated to him he could get him some work that paid well.

39.He had three telephone numbers in his phone for the 1st defendant.  Two were under two different names.

40.In his oral evidence, the 2nd defendant kept referring to these records in his mobile phone.

41.Eventually, it was located in his prisoner’s property and photographs of certain records were taken and exhibited as P13(1) to (28).  It includes two Mainland telephone numbers he said the 1st defendant gave him and a Hong Kong telephone number, 67154976, which came to him in a text that said, I quote, “My Hong Kong telephone number, 67154976.  Man.”

42.This was received on 19 June 2012 at 9.49 am, the morning the 2nd defendant arrived in Hong Kong, and can be seen at Exhibit P13, photograph 11.

43.He took the court through many examples of his phone records, such as a record of the 19 June 2012, 9.41 am, he says was from the 1st defendant.  The display showed the call was from “Man Yee Lo Ban” and displayed number 15344885843 and can be seen at photograph 13 of P13.

44.The phone was exhibited as P12 and it is a dual SIM card mobile.  It can also be seen in Exhibit P5, the photo album at photo 11, inside the glove compartment box of the 1st defendant’s vehicle.

45.The 2nd defendant said the police asked him to produce his mobile and he led the police to this vehicle.  He had put it there before he got out of the 1st defendant’s car to steal the vehicle.

46.The 2nd defendant said it was not the only mobile in the vehicle:  the 1st defendant had seven to eight mobile phones.

47.The prosecution rely on the 2nd defendant’s evidence to support their case against the 1st defendant.

48.The prosecution also rely on the circumstantial evidence, other than the 2nd defendant’s evidence.

49.That would be the fact the vehicle was found driven into the 1st defendant’s yard.  His business, the 1st defendant’s business, is selling dismantled or used vehicles, just like this stolen vehicle, a heavy goods vehicle.

50.He was arrested outside his yard at 3.22 am when the vehicle had been recently stolen, so recent its plates were being dismantled immediately despite the time of night.

51.The thief, the 2nd defendant’s, mobile telephone was found in his vehicle when he said he was waiting to inspect a vehicle for sale, even though it was 3 am.

52.The 2nd defendant was living in the 1st defendant’s yard and found in his yard with the stolen vehicle.

53.The prosecution’s circumstantial evidence in itself supports the 2nd defendant’s evidence.

54.There was evidence from the 2nd defendant that the 1st defendant had assaulted him and verbally threatened him whilst they were in custody together. The 1st defendant warned the 2nd defendant not to tell the police that the 1st defendant had played any part in this theft.

55.The 2nd defendant said the 1st defendant also arranged a woman to visit him twice whilst he was in Lai Chi Kok Detention Centre but he did not elaborate on the details.

56.The 2nd defendant said in his evidence he had told his lawyer and some staff at the Lai Chi Kok Detention Centre of these incidents, but there is no evidence it was investigated further.

57.The 1st defendant is not charged with attempting to pervert the course of justice or criminal intimidation.

The defence case

58.The defence case is that the 2nd defendant’s evidence against the 1st defendant is fabricated and untrue.  The 2nd defendant’s evidence in court was motivated by the hope he would get a lighter sentence if he implicated the 1st defendant successfully.

59.The defence case is that the 2nd defendant was not familiar with the 1st defendant at all.  The records in his mobile phone do not relate to the 1st defendant nor were the messages or telephone calls from the 1st defendant.  The 1st defendant did not invite him to Hong Kong with the promise of some work and income.

60.When he was here in October or November 2011, the 2nd defendant was staying with a clansman, “Fa Tse”, and it was her that invited him to stay in the yard, not the 1st defendant.

61.There were other proprietors working in the yard who had access to this yard, not just the 1st defendant.

62.The defence deny that the 1st and the 2nd defendant became known to each other in 2011.  The defence suggest the 2nd defendant was familiar with the 1st defendant’s brother, not the 1st defendant.

63.The defence also suggested to the 2nd defendant that his statement under caution after his arrest differs in part to his non-prejudicial statements given later when he offered to assist the prosecution.

64.The inconsistencies are serious, but the 2nd defendant agreed and explained that he was not truthful when first arrested.

65.The 1st defendant elected to give evidence and said he had no link to the 2nd defendant, did not invite him to Hong Kong and did not teach him how to steal a vehicle.

66.He explained the plates in his vehicle belonged to business partners, as did the mobiles in his vehicle.

67.There were others that used his private vehicle, including his younger brother.

68.He gave evidence that the telephone number, 15018935622, under “Man Lo Ban” was used by his younger brother, Man Keung-wan.

69.The 1st defendant explained he worked for a Japanese company as a salesman, but they parked some of the vehicles bought by this company at the yard he rented whilst they looked to rent their own premises.  The name of that company, Kwan Tak, was painted on his gates for easy identification.

70.On the material night, he was meeting a person who had called him about a vehicle for sale in the early hours of the morning, because he drove a taxi at night.  He did not have a contact number for that person who was meeting him.

71.He thought that the fact he had no contact number and it was a request to meet late at night was suspicious, but as he lived nearby and had just finished work, he was not concerned if nothing came of the arranged meet.

72.He had no idea how the stolen vehicle got into his yard 100 metres away nor why a man was dealing with the stolen vehicle licence plates at almost the same time as he was dealing with police officers outside.

73.The 1st defendant called his younger brother to give evidence on his behalf.  He lives in China.  He met the 2nd defendant at the 1st defendant’s yard in 2011 and the 2nd defendant asked him for his telephone number.  He gave him his number, 15018935622, and the 2nd defendant had asked him if he had any work for him.  He said in evidence he did not know or recognise the telephone number 67154976 and that he had never telephoned or texted a message to the 2nd defendant.

74.The purpose of his evidence was to say the 2nd defendant knew the 1st defendant had a brother, contrary to what he said in evidence.

75.It was also to cast doubt on the 2nd defendant’s evidence that it was the 1st defendant that had given him this China telephone number 15018935622, recorded under the name “Man Lo Ban”, when in fact, it belonged to his brother.

76.The witness also thought that the yellow container in the photograph that the 2nd defendant said he had slept in did not belong to his brother, the 1st defendant, but then he said it had been moved to their side not long ago, without further elaborating.

The law

77.The prosecution have the duty and the burden of proof to prove all the elements of this theft charge against the 1st defendant beyond reasonable doubt; the 1st defendant has no burden of proof.

78.The prosecution must prove the 1st defendant had the necessary dishonest mens rea to intend to steal another’s vehicle permanently and the actus reus to take it away.

79.In this case, the prosecution’s evidence is that the 1st and the 2nd defendant acted in concert to steal this heavy goods vehicle, with the intent to permanently deprive the owner of it.

80.There is no doubt or challenge to the fact that the vehicle was stolen or that the 2nd defendant was the one who drove it away.

81.The issue is whether the 1st defendant was an accomplice and, therefore, the credibility of the 2nd defendant is the main issue in this case.

My Findings

82.In final written submissions, defence counsel stressed that the 2nd defendant’s evidence was unreliable and not credible.  For example, why would the 2nd defendant come to Hong Kong without knowing the nature of the work offered or the reward he would receive?  Why would the 1st defendant only teach the 2nd defendant how to unlock a locked vehicle and break an ignition lock just before the theft when they had days prior to practise?

83.Defence counsel also submits the 2nd defendant’s evidence in the witness-box was in much more detail than his statements and, therefore, an indication of exaggeration.

84.He, for the first time, mentioned allegations of threats and assaults by the 1st defendant to prevent him implicating the 1st defendant.

85.Also, the phone records could not be directly linked to the 1st defendant.  There is no evidence to suggest that those three telephone numbers are actually used by the 1st defendant or registered to the 1st defendant.

86.Defence counsel also stresses the 2nd defendant is an accomplice and has motive to lie in the witness-box and successfully frame the 1st defendant.

87.As I have said, this case hinges on the credibility of the 2nd defendant, although it is possible there is other evidence that could infer guilt when considered collectively.

88.The 2nd defendant is an accomplice and, therefore, his evidence should be treated with caution.

89.There is always an element of self-interest or preservation when an accomplice gives evidence against a co-accused. The reason is obvious and cannot be ignored. It must be considered at all times when the court evaluates the credibility of such a witness and his evidence.

90.After careful evaluation of the 2nd defendant’s evidence-in-chief and in cross-examination, I am sure he is telling the truth.

91.His detail as to the events leading to the night of the theft and the course of events during the theft is convincing and credible.

92.I do not believe he fabricated so much detail against the 1st defendant that hold more than a ring of truth.

93.The 1st defendant in his defence does not challenge some of the 2nd defendant’s evidence, such as his living at the yard, his phone being in the 1st defendant’s vehicle at about the time of the completion of the theft, and that his purpose in coming to Hong Kong was to earn some money.

94.The defence contend that all these matters were not done at the instigation of or with the knowledge of the 1st defendant.

95.When the 1st defendant was arrested, he did give statements to the police under caution.

96.I accept his explanation as to why there are discrepancies or omissions when one compares those to his non-prejudicial statements.  That is not an uncommon situation to encounter when a co-accused decides to turn and assist the prosecution after a decision to plead guilty.

97.The 2nd defendant’s evidence of the 1st defendant’s involvement and leadership in this theft is supported by irrefutable evidence, such as the 1st defendant sitting in his car outside his own yard at 3 am, not long after the stolen vehicle had been driven into that yard.  The 1st defendant does give an explanation as to his presence but the 2nd defendant’s evidence is more plausible.

98.The 1st defendant sat outside as a lookout and distanced himself physically from the actual vehicle but still close enough to keep watch.

99.I am sure he carefully planned the theft using two SIM cards not traceable to him, in spare mobile phones to communicate with the 2nd defendant.

100.He gave the 2nd defendant tools to use, which he took back after the 2nd defendant drove the vehicle away.  There were tools found in his car by the police. 

101.The police found the 2nd defendant’s phone in the glove box because he did not need to use it during the course of the theft.

102.I am sure he invited the 2nd defendant to Hong Kong to actually, physically steal the vehicle.  He let the 2nd defendant live in his yard before the theft.  He gave the 2nd defendant instructions upon arrival where to go and to buy a local SIM card.  He supplied the 2nd defendant with a local number to contact him and there is a text message to this effect on the 2nd defendant’s phone.  The 2nd defendant was living in the 1st defendant’s yard, where there were 11 similar legally purchased vehicles.

103.The 1st defendant was in a business involving the same type of vehicle that was stolen and that ended up in his yard.  That is too much of a coincidence.

104.The 1st defendant’s brother, who gave evidence, was not part of this yard, this type of business or known to the 2nd defendant. The 1st defendant’s brother’s evidence was a separate and similar attempt to distance the 1st defendant from the 2nd defendant. He tried to connect that phone number of the 1st defendant’s to himself to assist the 1st defendant. I rejected his evidence. I say it was a separate and similar attempt to distance the 1st defendant from the 2nd defendant because that was what the 1st defendant himself tried to do in the witness-box: to distance and separate himself from the 2nd defendant.

105.His evidence of how and why he ended up outside his yard at that time when the stolen vehicle related to his business had not long before been driven into his yard was not believable or credible.

106.I do not believe the 1st defendant had no knowledge of that vehicle.

107.It was an agreed fact that he remained silent at the scene when questioned about his keys, the keys which led to the discovery of the stolen vehicle.

108.The 1st defendant was entitled to remain silent there and later when interviewed under caution.  No inference can be drawn against him, but his oral evidence contradicted the admitted evidence.  In oral evidence, he said the police asked ridiculous questions and confused him.  He did answer their questions, which is contrary to the admitted facts.

109.I am aware that even if I reject the 1st defendant’s evidence, I must be sure of the prosecution witness’s evidence, be sure it was credible.

110.The 1st defendant was not a credible witness. A straight denial of all knowledge carries little weight or sway when the prosecution’s evidence is so strong.

111.In conclusion, I accept the 2nd defendant’s evidence as the truth, despite the concerns that pertain to an accomplice’s evidence.

112.I am sure he was invited here to come to Hong Kong by the 1st defendant. 

113.I am sure he referred to the 1st defendant as “the boss” and had recorded him or named him as “Man Lo Ban” and “Man Yee Lo Ban” in his mobile phone directory. I do not believe this referred to another person surnamed “Man” or the 1st defendant’s sibling. I am sure the 1st defendant gave the 2nd defendant these contact telephone numbers recorded in his mobile and that the 2nd defendant did not make them up.

114.I am sure the text to the 2nd defendant from someone surnamed “Man” with a local telephone number at the time of his arrival in Hong Kong on 16 June, just before he went to stay at the 1st defendant’s yard, came from the 1st defendant.

115.I believe the 1st defendant intended the 2nd defendant to physically steal the vehicle whilst he stayed in the background in his own vehicle communicating through a mobile phone.

116.I believe he was caught red-handed by the police, keeping a lookout, but from a distance just outside his own yard at about 3 am.

117.I am sure the 1st defendant masterminded the theft and was prepared to reward the 2nd defendant financially, as promised, for his part.

118.The 2nd defendant’s evidence and the evidence surrounding the 1st defendant’s arrest and connection to the yard where the stolen vehicle was found is more than enough to convince me beyond reasonable doubt of the 1st defendant’s guilt.

119.Accordingly, I convict the 1st defendant of Charge 1, having found all the elements of the offence proved beyond reasonable doubt.