HKSAR v. Ul Oldokh Odgerel and Others
Read the full judgment text of DCCC 476/2013 on BabelCite. This District Court judgment was delivered on 4 October 2013.
1. The five defendants were charged with two counts of theft. They pleaded not guilty to the charge. The trial lasted for nine days. Here are the reasons for verdict.
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DCCC 476/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 476 OF 2013 ----------------------
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--------------------- Reasons for Verdict --------------------- 1.The five defendants were charged with two counts of theft. They pleaded not guilty to the charge. The trial lasted for nine days. Here are the reasons for verdict. The Prosecution case 2.The gist of the prosecution’s case is that all five defendants are Outer Mongolians. They attended the Hong Kong International Jewellery Show (“the Show”) held at the Hong Kong Convention and Exhibition Centre (“HKCEC”). It was alleged that on 5 March 2013 the defendants went to one jewellery exhibition booth and stole 10 diamonds worth about HK$156,000-odd. On the same day they stole a coral chain and 30 coral beads with the total value of about HK$538,000-odd from another jewellery booth in the Show. 3.All parties admitted the following facts, pursuant to Section 65C of CPO, Cap.221:
4.The prosecution called a total of 15 witnesses. 5.Counsel indicated that the alternative procedure would be adopted for their challenges to the admissibility of the respective VIRs relating to D1, D3 and D4. PW1 Zhang Lai-shan 6.She worked for Motti Kahana Diamonds. At about 8 am on 5 March PW1 attended Booth E29 at the lobby of the 3/F. She identified the setup as depicted in the photos at photo album A, P161. She put the jewellery in the display boxes and kept the boxes locked. Diamonds of less than one carat were kept in a transparent bag together with its GIA certificate. For those over one carat, they would be kept in cases. 7.At about 1:30 pm on the day, PW1 remembered that several women came to her counter and asked to see the list. They also asked questions about the diamonds. PW1 tried her best to explain to them in simple English, as the women were not speaking Putonghua or English. PW1 identified herself from the still photos of the album D. PW1 was standing inside the booth while a number of ladies were at the display shelf case. PW1 gave them some lists which were placed on the shelf case. The group of ladies did not buy anything. At about 3 pm PW1 found out that about 10 diamonds worth about US$20,100-odd were missing. These diamonds have their respective GIA certificates and the company label. Each diamond has its unique number which was created by laser. After viewing the footage of the CCTV, PW1 found the group of ladies suspicious. She called the police. 8.On 8 May 2013 PW1 went to Wan Chai Police Station and was shown seven diamonds, out of which six have GIA certificates. There was one diamond that was not the property of PW1’s company. PW1 confirmed that six diamonds are her company’s property. When asked about the gist of the conversation with the group of ladies, PW1 said they asked about the price of the diamonds. It was mainly the two ladies who talked to PW1. 9.Under cross-examination by counsel for D1, PW1 said she was a part-time sales staff of the company. The group of ladies stayed at the display shelf for about five minutes. PW1 said once she took out the diamonds from the display shelf, she would usually lock up the shelf. There were about 300 to 400 diamonds in the shelf that PW1 manned. She admitted that she had communication problems with the ladies, but the lady on the right as shown in the still photo spoke more English. The booth opened for business till about 6 to 6:30 pm on the day. There were over 30 customers after the group of ladies left. The lady who talked to PW1 is taller than PW1 and is about 160 cm and aged about 40 to 50. She looked at the registration badge that the lady was wearing. It shows the nationality of the bearer is Mongolia. 10.Under cross-examination by counsel for D2 and D5, PW1 said when the group of Mongolian ladies came, they asked PW1 to show them the certificates. She took out the certificate from the plastic bag. Usually she would keep the diamond which was wrapped in paper in the plastic bag. PW1 could not recall if she had shown the group the diamonds. PW1 said usually if customers wanted to inspect the diamonds, she would invite them to sit at the table inside the booth. 11.Under cross-examination by counsel for D3, PW1 said she had lunch between 1 pm and 3 pm. She took out the GIA certificate from the plastic bag which contained one diamond. Normally she would hold the diamond in her hand. PW1 was not sure if she had shown the diamonds to those Mongolian ladies. As far as PW1 could recall, she did not show them diamonds. At that time, there were three other customers inside the booth. After the Mongolian lady viewed the GIA certificate, PW1 put it back to the plastic bag and then locked the display shelf. 12.Under cross-examination by counsel for D4, PW1 maintained that she probably did not show them diamonds. One of the ladies did ask her some questions about the list. The other lady interacted with her. The lady spoke some simple English and some Putonghua. There were three staff members including PW1 manning the booth. 13.When asked, PW1 said the list is written in English with numbers and it shows the grades of those diamonds on display. One of the ladies looked at the list and asked for a particular certificate. PW2 Sung Man-kuen 14.She worked for Famous Group since 2008 as the administrative sales manager. Her company sold coral beads and some semi-finished products with the registered trademark CIMMIO. The company took part in the Show, occupying three booth areas in Booth D02 at Hall 3C. She identified the setup of the booth from album B. They displayed the products in the shelf but did not lock it. On 7 March they realised that one coral chain of 17-mm long worth about US$68,800-odd was missing. At first, they did not make a report to the police as it was not confirmed. Eventually they discovered 30 pieces of 7-mm round beads valued at about US$251 were missing too. 15.Under cross-examination by counsel for D1, PW2 said she did not conduct stocktaking inside the booth on the day but did so beforehand. She did not know if the coral chain (Exhibit P54) was on display as she was occupied with other duties. Regarding the coral beads (Exhibit P55), that was the only packet of 16 gramme on the stock list. She could not tell if P55 was on display too as there were many other similar products. On 5 March she attended the booth from 9 am to 7 pm and there were many customers. When the booth was closed on the day, she did not conduct any stock check. PW3 Chow Cheuk-yiu 16.He was the assistant project manager of the Trade Development Council (TDC) since 2011. His main duty was to assist TDC in hosting exhibitions, in particular, buyers’ registration. 17.All attendees of the Show were required to register before entering the venue. The Show was held from 5 to 9 March 2013 and each buyer was required to show his or her identification document. The buyer was also required to present his or her business card to show that they were in the jewellery or jewellery trading business. They paid $100 for the registration. Each buyer or attendee would be given a badge which shows the buyer’s name, country of origin and a bar code. The bar code would be scanned when the buyer entered the exhibition hall but there was no scanning when they left. 18.The buyer or attendee was required to sign the registration form, and colleagues of TDC would then staple his or her business card to the registration form. PW3 identified the registration form of D1 to D5 as P2 to P6, and their respective business card as P2A to P6A. The purpose of attaching the business card to the form is for keying in the information shown on the business card into the computer and for record purpose. PW3 was not sure if the particulars in the form were filled in by the TDC staff or by the buyer. The staff would also check the identification. 19.Exhibit P7 is the entrance or movement record of all five defendants in the show on 5 March 2013. This record was generated by computer when the buyer or attendee passed the checkpoints of a section or zone in the Show. The bar code on the badge was scanned. For each scanner checkpoint, there were about two to three temporary staff with hand held scanner. The buyer was required to show the registration badge before entering a section in the Show. 20.Each exhibition has its own codename and “Number 23” means “jewellery show”. The buyer could make the registration online in advance or just walk in. Each buyer would then be assigned a unique registration number. Entrance to Hall 3C was assigned the number 65. From the record, all five defendants entered the Show only on 5 March. 21.Under cross-examination, PW3 agreed that the dates appeared on the columns in the annexure to the entrance record P7 were wrong and it should read “5 to 8 March 2013” instead of “5 to 8 February 2013”. The title of the annexure reads “HK TDC HK International Jewellery Show 2013 [Project ID: 23], 5-9 March 2013”. The table showing the locations of vary checkpoints and its numbers was prepared by PW3’s colleague. PW4 DPC 33893 Li Chung 22.At about 5:15 pm on 7 March 2013, PW4 and his colleagues went to Room A-12, 16th Floor, Mirador Mansion to arrest D1, D3 and D4. These three defendants were identified in court. PW4 conducted a room search and found a number of jewellery items in a black suitcase (Exhibit P20, photo 6 to 9 of album F). The black suitcase belonged to D3. PW4 asked D3 who provided the lock code to him. 23.PW4 communicated with D3 in simple English, but D3 told PW4 the lock code in Putonghua. Before D3 revealed the lock code, PW4 used a ball pen to unzip the suitcase. Inside the suitcase, PW4 found a blue handbag (Exhibit P21) in which a purse (Exhibit P22) was located. PW4 found five diamonds (Exhibit P28, P34, P40, P46, P52) in a transparent plastic bag. GIA certificates were enclosed too. The diamonds were wrapped in two pieces of coloured paper. PW4 recovered another diamond (Exhibit P67) and the GIA certificate (Exhibit P66) in another compartment inside the suitcase after D3 told him the lock code being “000”. PW4 also recovered one chain of coral bead (P54) and 30 coral beads (P55) inside the suitcase. The latter two coral beads items bear the trademark “CIMMINO”. PW4 found a name card case (Exhibit P56) and two name cards in D3’s name (P57). The police also found a buyer badge which was related to an exhibition held in China (Exhibit P17, see photo 9 of album F). PW4 also noticed there was a sticker in D3’s name from the airport or airline (see photo 28 of album E). PW4 recalled that when he asked D3 if the suitcase was hers, D3 nodded. 24.PW4 also found D4’s green rucksack with a tag in D4’s name (P74) inside which a black bag (Exhibit P75) and a guide map of the Show (P78) were located. 25.Under cross-examination, PW4 found the black suitcase at bed B as shown in the sketch P152. When PW4 arrived at Mirador Mansion, D1, D3 and D4 were sitting inside Room A-10 on the 16th floor. PW4 did not say anything to the defendants. He stood outside Room A-10 waiting for instructions from Station Sergeant Chan. Then the party proceeded to Room A-12. The three defendants had checked out the room already. The police used the key provided by the principal tenant Tso Ching-ping to open the door of A-12 and conducted a room search in the presence of all three defendants. PW4 asked D3 in simple English in front of all three defendants whether the suitcase (P20) was D3’s. D3 did not say anything but nodded. PW4 was of the view that D3 could understand simple English. PW4 learnt from the principal tenant that they were able to communicate in simple English and Putonghua. D3 said in Putonghua the lock code of the suitcase. D3 did not say anything at the scene. PW4 also found clothes and trousers in the suitcase. 26.PW4 also asked D4 if the bag was hers. D4 nodded. PW4 searched the bag and found a number of jewellery items, rings and chains which are not related to the present case. PW4 denied that he saw D4 trying to talk to D1. D4 was sitting on the bed and did not move. PW5 Cimmino Claudio 27.He was the managing director of Famous Group, an Italian company manufacturing gemstones and coral items. He took part in the Show in Hong Kong. He identified the coral chain (P54) as the property of his company. The chain is quite rare in the market and worth about US$68,000-odd. PW5 recalled that the coral chain and 30 pieces of the 7-mm coral beads, which have a net weight of 60 grammes and worth about US$251, were on display on day one of the Show. The display shelf cases were not locked. PW5 realised the items were stolen on the second day. 28.Under cross-examination, PW5 said they have about four to five staff members to put the jewellery items in the Show. They checked the display items before the Show. They have three booths in one location. At the close of the day on 5 March, PW5 did not know the said jewellery items were missing. PW5 agreed that the coral chain P54 is relatively expensive. PW5 and his staff categorised the items and some of the beads were hung on the wall. PW5 was able to confirm the said jewellery items missing on 6 or 7 March. The matter was reported to the police on 7 March. PW6 WDPC 9141 Mui Hau-yee 29.She joined the Force in 2008. She went to Room A-10 of Mirador Mansion at about 5:40 pm on 7 March. She identified D1, D3 and D4 in court. She conducted body search on these three Mongolian ladies inside Room A-10. PW6 found six pieces of D1’s name cards (P19) and eight pieces of D4’s name cards (P89) on D1 and D4 respectively. PW6 compared the name cards with those stapled to the buyer’s registration form in D1’s name (P2A) and D4’s name (P5A), and concluded that they are the same. PW7 Tso Ching-ping 30.Room A-10 on the 16th floor Mirador Mansion was the reception area of the guesthouse that she operated. On 3 March 2010, three ladies and one man came to her guesthouse to rent a suite. PW7 communicated with them in Putonghua and English. The rental was $350 per day and they rented a room for three to four days. PW7 identified the photos of album E and said she rented Room A-12 to the lady and the man. One of the ladies paid the rent of about $1,200. They did not get the receipt. 31.Under cross-examination, PW7 said she lived in Room A-10. The unit A-12 has four subdivided rooms: Room A to Room D. She was told by a security guard of the building that two Mongolians were arrested by the police on the rooftop. She let the door of A-10 open all the time and all customers could come in and sit inside the room. The police officers in plainclothes entered A-10 with three ladies. The officers forced her to open the door of A-12. PW8 PC 54153 Chan Po-wa 32.He joined the Force in 1993. On 7 March 2013 he was in plainclothes and was on patrol duty with PC 58224. At about 3:35 pm they patrolled to the rear staircase on the 16th floor of Mirador Mansion, which leads to the rooftop of the building. They saw two women sitting on the staircase. PW8 identified D1 and D4 in court. PW8 revealed his police identity by showing his police warrant card. He used simple English to ask them for their passports. D1 and D4 showed their passports. PW8 saw both of them were scared and their hands trembling. PW8 could not communicate with them as they seemed to speak Mongolian language. PW8 contacted his team leader Sergeant 45226 requesting for assistance. 33.At about 3:50 pm, Sergeant and WPC 9994 came to the scene. The woman constable gave PW8 some documents about a theft case in Wanchai. Passport numbers were mentioned in the document and the numbers matched with the passport numbers shown by D1 and D4. PW8 later used simple English to arrest D4. D4 did not respond. His partner PC 58224 arrested D1. PW8 denied he or his colleagues ever threatened to beat the defendant. Later PW8 and Sergeant went to conduct a sweeping operation in the building. 34.At a later stage, PW8 and PC 58963 saw a woman in the corridor on the 16th floor. She walked in haste and entered a room. PW8 noticed the room was the reception of Wing Shing guesthouse. That woman was arrested by PC 58963 outside Room A-10. 35.Under cross-examination, PW8 said that he saw the two Mongolian ladies at the staircase on the 16th floor. PW8 showed his police warrant card by holding the warrant card in his hand and said, “Police,” in English. PW8 also asked the ladies to show him their passports. At that time the ladies looked scared and their hands trembling. PW8 only knew about the occurrence of a theft in HKCEC but not the nature thereof. PW8 allowed D1 and D4 talk in their own language while being guarded. 36.PW8 has almost 20 years of experience. He did not consider necessary to stop the defendants talking even though they talked in a language that PW8 does not understand. D1 did not speak English in PW8’s presence but just shook her head to indicate that she did not understand. From his own experience, PW8 knew that most Mongolians he encountered in Hong Kong could speak simple English. He used simple English to explain why he arrested the defendant. He strongly believes that the defendants understand simple English. PW8 agreed that there was a possibility that D1 did not understand English, but it would be the same if PW8 spoke to her in Cantonese. PW8 takes the view that even if the defendant did not speak English, it does not mean she could not understand English. PW8 got the case file from WPC and subsequently PW8 could confirm that D1 and D4 were the wanted persons, but they still allowed the defendants to talk. PW8 denied any officer raised his right elbow in front of D1 and threatened the latter. D1 and D4 took out their passport from their handbags respectively. PW8 denied the defendants were handcuffed. 37.PW8 took the lift from ground floor to 16th floor of Mirador Mansion. Later PW8 and his partner went to the rear staircase on the 16th floor and saw the two defendants. They guarded the two defendants at the staircase for about an hour. There was no other people near the staircase at the time and he could not see other people in the corridor. He saw the third lady carrying a handbag in the corridor. That third lady was arrested by PC 58963. Later WPC 4592 in plainclothes searched the third lady inside Room A-10. PW9 did not handcuff D4 in Room A-12. PW8 could not recall if all three defendants were talking inside Room A-12 when the room search was conducted. PW9 PC 58224 Kwong Yee-ping 38.He joined the Force in 1997. He had a briefing at 11 am on 7 March 2013 and then partnered with PC 54153 to patrol. When they reached the rear staircase on the 16th floor of Mirador Mansion, they found D1 and D4 sitting on the staircase. He found the appearance of these two women matched with the descriptions mentioned by the Sergeant in the briefing. PW9 revealed his police identity and asked them in English to produce their identity documents. Each of them then produced their Mongolian passport. At about 3:50 pm, Sergeant and WPC 9994 arrived and the latter brought with her some crime information. When the information was confirmed, PW9 arrested D4. D4 did not respond. Later he learnt that PC 58963 arrested another Mongolian lady outside Room A-10 on the 16th floor. PW9 denied he threatened any of the defendants in any way. He stood outside A-12 when the room was searched. He did not handcuff D4. He pointed at the defendants’ handbag and asked them to hand over their handbags for making a search. 39.Under cross-examination, PW9 said at 4:55 pm he was instructed to take D1 and D4 to Room A-10 of Wing Shing Guesthouse. He allowed D1 and D4 talking to each other in his presence. PW9 denied any officer in his presence had threatened D1. Before the arrival of the Sergeant, PW9 and his colleague checked the defendant’s handbag and then allowed them to hold their handbag. The Sergeant stayed at the staircase for about 15 minutes and he went with PC 54143 to conduct the sweeping operation. The defendants were allowed to talk freely. PW9 did not notice any blood on D1’s handbag nor was he aware that D1 was having period. 40.When they saw the two defendants at the staircase, PW9 said to them words to the effect: “Police, show me your passport.” PW9 did not notice that D2 tried to talk to D1 inside Room A-12 when the room search was conducted. PW9 did not see any officer trying to threaten D4. PW10 PC 58963 Wong Chung 41.He joined the police in 1998. At about 4:45 pm, PW10 saw D3 in the corridor of the 16th floor of Mirador Mansion. D3 was carrying a brown bag and went to Room A-10. PW10 followed and inside Room A-10, PW10 revealed his police identity. PW10 told D3 to go outside the room for investigation. 42.At first, PW10 spoke in Cantonese and later changed to simple English. PW10 asked her to show her document, and D3 took out her Mongolian passport from her handbag. PW10 found the particulars in the passport matched with those information from the crime message relating to a theft case in Wanchai. PW10 declared arrest on D3 for the theft case committed on 5 March at HKCEC. D3 did not say or do anything in response. Room search at A-12 was finished at about 6:55 pm. All along, PW10 was outside the room and denied that he threatened the defendant in any way. 43.Under cross-examination, PW10 went to 16th floor of Mirador Mansion alone. He did not go there with the Sergeant. At that time he did not see any other colleagues. PW10 contacted PC 54153 by phone. They stayed on the 16th floor to conduct the sweeping exercise. At about 4:45 pm, PW10 saw D3. From his experience, PW10 knows that most Mongolians he encountered in Hong Kong know simple English. PW10 believed that D3 understood what he said when he revealed his police identity. PW10 even proceeded to search D3’s handbag. Then all three defendants were brought to Room A-10 and then Room A-12. While the three defendants were inside Room A-12, PW10 could not remember if they talked to each other. PW11 Sergeant 45226 Lee Ping-kwong 44.On 7 March, PW11 gave a briefing to a party of police officers. Later at about 3:50 pm, PW11 and WPC 9994 went to Mirador Mansion to give assistance to two police officers. PW11 met them at the rear staircase on the 16th floor. PW11 instructed WPC to pass the crime message files to PC 54143. The officers checked the passports of the two Mongolians and confirmed their identity. Subsequently, the two ladies were arrested. Later, PW11 left the scene with PC 54153. 45.Under cross-examination, PW11 said that there was no mention of communication problems when the officer called him for assistance. He was asked to provide crime alert information so as to confirm if the two Mongolian ladies were implicated in the theft case. PW11 has the impression that the Mongolian ladies were able to communicate with his colleagues in simple English. The Mongolian ladies were allowed to talk to each other. At that time, PW11 was the most senior officer at the scene. He noticed that when his colleagues asked the Mongolian ladies to sit down, the latter did. Their facial expression, their gesture and reaction indicated that the Mongolian ladies understood what the officers said to them. The ladies were cooperative and sat down on the staircase when told. PW11 did not enquire if there was any communication problem with the Mongolian ladies and they were not handcuffed. PW12 WPC 9994 Wong Ka-yee 46.She joined the Force in 2009. At about 3:30 pm on 7 March, she went with Sergeant 45226 to 16th Floor, Mirador Mansion, and met two officers and two Mongolian ladies. PW12 could only identify D1 in court. She brought along some crime message files. Later, her colleagues declared arrest, in simple English, on the two ladies. PW12 was in plainclothes. She denied she had raised her right elbow to threaten D1 or D4. At that time, PW12 was having longer hair up to her shoulder. 47.Under cross-examination, PW12 said she did not tie up her hair when she was in plainclothes duties. When she was guarding the two ladies, they were sitting next to each other on the staircase. She allowed the two Mongolian ladies talked to each other. She did not see any problems with that. She conducted search on the ladies’ handbags. PW12 did not aware that D1 was given a lady sanitary at the police station. PW12 repeated that D4 was not handcuffed. PW13 DPC 34099 Leung Pak-hang 48.He joined the Force in 1995. On 7 March, PW13 was tasked to conduct a VRI with a Mongolian lady. PW13 could not identify that lady in court. It was agreed that it was D1. A Mongolian interpreter was also present in the VRI and that interpreter explained the content of the notice Pol 153 (Exhibit P110) to D1. The communication between PW13 and D1 was through an English interpreter and then a Mongolian interpreter. PW13 said D1 did not tell him that she was not feeling well and had a headache and fever. D1 did not make any request. After the interview, D1 signed the receipt, P113. At about 4:27 pm, PW13 conducted another VRI with D1. He did not issue another Pol 153 to D1 as that was issued earlier on. This time, Sergeant 9673 was present. After the interview, D1 was given a copy of the DVD and she signed the receipt, P117. 49.PW13 also conducted VRI with D2 (Exhibit P119) with similar procedure. PW13 did not know that D1 was taken to the hospital after the interview. 50.Under cross-examination, PW13 denied that in the second VRI, he needed Sergeant’s instructions as to when to stop the interview. PW13 said although D1 did mention that that she had a fever, she said she could continue with the interview. PW13 maintained that he informed D1 that she could stop the interview any time. PW13 said D1 did not look unwell during the interview. D1 should know her rights before the interview as the interpreter had told her the content of Pol 153. Throughout the first VRI, D1 did not mention that she was feeling unwell. PW14 Detective Sergeant 9673 Chan Man-cheong 51.He was involved in one of the VRIs with D1. During the interview, PW14 was not aware that D1 was not feeling well. PW14 agreed that D1 did mention that she had a fever in the interview. After the interview, PW14 arranged D1 to seek medical attendance. PW14 recalled that D1 was wearing a black jacket which is quite thick. It was not that cold on the day. 52.On 8 March, PW14 and WDPC 3229 were involved in conducting the VRI with D4. 53.Under cross-examination by counsel for D1, PW14 said he was only involved in the second VRI with D1. During the interview, D1 mentioned that she had a fever and she wanted to finish the interview quickly and then to seek medical attention. PW14 maintained that if D1 really had problems at that time, he would stop the interview immediately. But D1’s answers were smooth. PW14 had no clue how long the interview would be as sometimes it also depends on the answers given by the interviewee. PW14 did pay particular attention to D1’s condition. He told D1 that if she was not okay, she should tell him. PW14 was of the view that if D1 did not understand the questions, she would not answer them. On a number of occasions, D1 did ask what the question was. PW14 did not agree that D1 had difficulty in understanding the questions put to her due to her physical condition. 54.Under cross-examination by counsel for D4, PW14 said that before the interview, they had asked D4 if she was fit to be interviewed. PW14 did not have a written record for that. It was his practice to ask if the interviewee was fit for the interview before the interview started. During the interview, D4 asked and was provided with lady sanitary pad. The interview was stopped for a while. PW15 WDPC 3229 Cheng Ka-man 55.She joined the Force in 2001. When the room search in Room A-12 of Mirador Mansion was conducted, PW15 was at the doorway. Later in the police station, PW1 conducted a VRI with D3. She issued the notice Pol 153 to D3 (Exhibit P123). PW15 found D3 was fit to be interviewed. She did not make any request for medical treatment. After the interview, PW15 gave a copy of the DVD to D3 and the latter signed to acknowledge receipt (Exhibit P126). 56.Later on 8 March, PW15 took D4 and issued the notice Pol 153 to her (Exhibit P131). The VRI was conducted from 1813 hours to 2016 hours. After the interview, D4 signed the notice of receipt (P135). 57.Under cross-examination, PW15 said in early March this year, she was wearing a similar short hairstyle. She was in plainclothes. She was not aware that another woman police officer was guarding two Mongolian ladies at the rear staircase on the 16th floor. PW15 went to Room A-10 directly. She denied that before the VRI commenced, D3 had said she wanted to instruct a lawyer. PW15 said if the interviewee refused to participate in the VRI, it can be done in an interview and the process be reduced into writing. PW15 told D3 the options before the interview started. D3 replied through the interpreter that she understood. PW15 insisted that she had followed the procedures in administering caution to D3. After the interview, PW15 took D3 to the duty officer who then arranged the defendant to see a doctor. When PW15 arrived at 16th floor of Mirador Mansion, she was tasked to guard D4 who was not handcuffed. PW15 said it was her normal practice to ask the interviewee if he or she was willing to take part in the interview before the interview commenced. D4 said she was okay to be interviewed. D1’s testimony on the special issue 58.She was aged 41 and received education up to Form 7 of high secondary level in Mongolia. At about 3:30 pm on 7 March, D1 and D4 were sitting at the rear staircase on the 16th floor of Mirador Mansion as they did not have the key to the guesthouse. Two males approached them. One of the males showed them something which the male was holding in his hand. The males talked to them but D1 did not understand what they were talking about. D1 had no idea of the males’ status. D1 guessed they wanted to check her passport or visa as the male said “passport” many times. D1 took out her passport from her from her waist bag. The males pointed at D1’s handbag and then searched it. D1’s waist bag was checked by a female at a later stage. D1 recalled that she had her passport, name card, ATM card, $10, RMB$10,000 and Mongolian dollar $25,000 in her waist bag. Then D1 was handcuffed from her back. Later, four to five people came to the staircase. One female officer checked D1’s clothes. 59.D1 said she learnt Mongolian and Russian at school. She did not learn Putonghua. D1 was sitting on the staircase. When she was about to ask D4 what was going on, one officer standing in front of D1 raised his hand and uttered a sound “Shh”. D1 thought that man was going to hit her. D1 felt scared. About 10 minutes later, D1 found herself bleeding. The people around here ignored her. D1 sat on her handbag even though she was handcuffed from her back. There was bloodstain on the staircase. Later D1 and D4 were brought to the guesthouse. Back to the police station, D1 was upset and given a lady sanitary pad. D1 also mentioned that she got a sanitary pad at the guesthouse. She took it and went to the toilet. 60.Back to the police station, D1 had a fever and headache. D1 did not tell the officer when the interview started because she was scared and shocked. D1 was afraid that they might beat her up. D1 just answered the questions put to her. D1 repeated that she was shocked while the interview was conducted. And if she did not answer the questions, they would threaten or hit her. She put on her green jacket because she had a fever and headache. D1 did not understand the questions but she answered them. She felt unwell and wanted to finish the interview as soon as possible. D1 thought she had to answer the questions. She had a throbbing headache. 61.Under cross-examination by counsel for the prosecution, D1 said she could not speak and understand simple English but she understands the word “passport”. When shown D1’s name card (P2A), which is printed in English and Mongolian, D1 said the cards were given to her by someone. Other people helped her to fill in the buyer registration form P2. She did not know that person. When the male showed her the card, D1 insisted that she did not know he is a police officer. She thought he wanted to check her visa and said, “Passport.” D1 also said later she was wearing a hood, after the police finished the search. D1 said she was handcuffed from her back. She used a lady sanitary pad but could not put up her trousers. She asked D4 for help. D4 gave her a hand. When D1 demonstrated the act, D1 showed that she was handcuffed in the front. D1 said at first she was handcuffed from the back and later, after the room search, she was handcuffed in the front. D1 said she took a piece of sanitary pad in the room where the police conducted a search, and went to the toilet. As she could not put up her pants, D1 went out to the room and asked for D4’s help. D1 said no one actually hit her, but an officer raised his hand and made her scared. D1 was in panic and had a fever. She signed the notice Pol 153. 62.In re-examination, D1 said even at the time when she was handcuffed, she did not realise the males appeared at the staircase are police officers. D1 was brought to the hospital. D1 was shown the medical report (DP1) which was dated 27 August 2013. D1 said she consulted a doctor with the aid of an interpreter over the phone. Election of D3 and D4 relating to the special issue 63.D3 and D4 elected not to give evidence. Counsel for D4 tendered the medical report of D4 dated 30 August 2013 as DP2 under section 65B, CPO. Ruling on the special issue 64.It was alleged that D1 was threatened by a police officer in plainclothes, either a male or a female, at the staircase on the 16th floor of Mirador Mansion. That officer raised his or her right elbow, threatening to beat D1 up. D1 was frightened. At the same time, D1 was suffering from headache and fever during the two VRIs and needed medical treatment. It was alleged that the VRIs were conducted in an oppressive manner. 65.Counsel for D3 amended the written objection by deleting “D3 was never told or explained her rights as a detainee before the said interview” and inserting “D3’s rights as a detainee were prejudiced by the conduct of the interviewer”. D3 alleged that the VRI was conducted in an oppressive and unfair manner as the officer did not tell D3 that she had a right not to take part in the VRI and did not ask if D3 was fit to attend. All in all, it was said D3 was acting under a feeling or belief that she was required to take part in the VRI and to answer the questions. 66.D4 alleged that when the room search was conducted (in Room A-12), an officer in plainclothes threatened to beat D4 up and, because of the threat, D4 took part in the VRI. During the interview, D4 was scared and felt uncomfortable. As such, the interview was conducted in an oppressive manner. 67.In HKSAR v Leung Chiu Ming [2001] 1 HKLRD 272, the Court of Appeal observed that when the applicant elected not to give evidence on the special issue, quite often it would deprive the court the chance of assessing the only source of evidence to support the allegations. 68.I could not see the threat, if any, that the officers in plainclothes made at the staircase could continue to carry the effect to the police station when the VRI was conducted. From the footage of the VRI, D1 was interacting attentively with the officers through the interpreters. The police officers allowed all three defendants to talk to each other in Mongolian either at the staircase or in the rooms. The police officers are credible witnesses and I accept their evidence in full. Their evidence was in no way shattered or discredited under cross-examination by defence counsel. 69.There is no basis for D3 and D4 to substantiate their allegations as they elected not to give evidence. D1 and D4 were taken to the hospital to seek medical attendance after the interview. In the written objections, it was mentioned that D1 was suffering from headache and fever. D1 mentioned about being handcuffed from the back at the staircase and yet she said she was able to move the handbag and sat on it when she was having menstrual bleeding. She said she got a lady sanitary pad in the room and yet asked D4 to help her to put on her trousers. D1 was later handcuffed in the front, which is a piece of information that was never put to the officers at all. D1 also mentioned that an officer put a hood on her. Again, this was not mentioned at all when the officers were cross-examined. 70.All in all, I do not accept D1’s testimony on the special issue. In fact, from the response and replies made by D1 during the VRIs, there was no indication at all that D1 was ever threatened or under any oppressiveness in taking part in the interviews. 71.The reply at entry 2414 is an example when D1 said, “I keep on [sic] answering all your questions as much as I can. Mongolians usually ask this way. At first, did you go to? Went in separately, entered - it is true. Continue like this. I really don’t understand.” 72.In the second VRI, D1 in her reply (entry 972), she said, “I don’t want to answer this question now. Why don’t you ask this from them directly?” There are hardly any direct admissions from D1. At the end of the interview, D1 even said, “Hong Kong has changed, became more beautiful.” (entry 1080). 73.I do not believe that the defendants do not understand simple English as they travelled all the way from Mongolia. 74.Taking all factors into account, I ruled that the VRIs of the defendants are admissible and the defendants did participate in the interviews voluntarily and there is no justification for this court to exclude any of the VRIs. D1 - 1st VRI on 8 March 2013 from 1040 hours to 1312 hours 75.Entry:
D1 - 2nd VRI on 8 March 2013 from 1639 hours to 1743 hours (Exhibit P114, P115 and P115A) 76.Entry:
D2 - VRI on 9 March 2013 from 1059 hours to 1205 hours (Exhibit P119, P120 and P120A) 77.Entry:
D3’s VRI on 8 March 2013 from 0015 hours to 0219 hours (Exhibit 124, 125, 125A) 78.Entry:
D4’s VRI on 8 March 2013 from 1813 hours to 2016 hours (P132, P133 and P133A) 79.Entry:
D5’s VRI on 8 to 9 March from 2223 hours to 0033 hours (P137, P138, P138A) 80.Entry:
81.Defence counsel had no half-time submission. 82.All five defendants elected not to give evidence nor called any defence witnesses on the general issue. Analysis 83.First of all, it has to be stressed that all along, it is the duty of the prosecution to prove the elements of the offence against all five defendants beyond reasonable doubt. The defendant has no duty to prove anything. 84.Each of the five defendants has no criminal record in Hong Kong and that is to be considered as their good character. As such, the court is to consider all available evidence in their favour in terms of their credibility and propensity to commit crime. 85.The content of the VRIs of each defendant will only be applicable to the individual defendant and does not apply to other co-defendants. 86.The fact that all five defendants elected not to give evidence on the general issue is their right and this court will not draw any adverse inference against them on their election. On the other hand, what was said by the defendants in their VRIs, if accepted, could not be attached with the same weight as if the defendant testified in court. 87.While I found the versions put forward by the defendants in their VRIs not creditworthy, I have to consider the evidence tendered by the prosecution as a whole to see if the offences could be proved beyond reasonable doubt. I found that all the prosecution witnesses are credible witnesses and their evidence can be relied on. Their evidence has not been shattered by the cross-examination of the defence counsel. 88.It is clear that the answers given by all five defendants in their respective VRIs are evasive and quite often they simply said, “I don’t know.” It is noted that three of them (D1, D3 and D4) complained of having their menstruation problem while being interviewed. D1 even claimed that she started to bleed at the staircase on the 16th floor. I find that they tried every means to challenge the voluntariness of their VRIs but to no avail. From the extracts of the entries in the VRIs, as I have quoted earlier on, it is obvious that the defendants knew their rights and the process was fair to them. 89.There is no dispute that the act of stealing could not be captured by the CCTV at the Show and that, to some extent, shows the skill and strategy of the culprits in concealing the crime. The fact is stolen properties were located in D3’s suitcase. Of course, D3 denied any knowledge of the stolen properties and simply said that a person put the items into her suitcase. 90.D1, D3 and D4 were staying in Room A-12 of Mirador Mansion. D2 was arrested in Tsim Sha Tsui area on 7 March while D5 was arrested when she was about to leave Hong Kong for Mongolia on 8 March. It is of interest to note that D1, D3 and D4 came to Hong Kong by flight at about the same time on 3 March 2013. D2 and D5 came to Hong Kong via Lo Wu at about the same time (that is, 11:51 pm and 11:54 pm respectively), three days earlier, that is, on 28 February 2013. 91.Telephone records showed the link between D1 and D3; D1 and D5; D2 and D3; D2 and D5; D3 and D4; and D3 and D5. D2 and D5 called each other for 37 times (see paragraph 8 of the Admitted Facts). They all went to the Show once and that was on 5 March. CCTV captured D1, D2, D3, D4 and D5 entering Hall 3F and all of them appeared at Booth E29 in Hall 3F (paragraph 11 of the Admitted Facts). All five defendants registered before entering the show and each of them was given a badge. They were required to fill in the buyer’s registration form and each applicant was required to present his or her passport. The admission fee was HK$100 and the participants were required to present their name card to show that they were in the jewellery business and for the record purpose. All five defendants presented their name card for registration purpose. It shows that even though they just walked in on the day to attend the show, they have prepared their name cards for registration purpose. The visit to the show was planned and was not an ad hoc arrangement. 92.I found it extremely unusual if an ordinary tourist would have the interest to see a jewellery show, whether it is on high end or not, on their first or second visit to Hong Kong. 93.The background of the defendants, all come from Mongolia, would further reinforce such suspicion, as some of them run a small booth in the market selling small items or accessories. It is clear that the market the defendants talked about was totally different from the market that was targeted for the show. There was no indication that they would visit shops of those accessories of low end in Hong Kong. The defendants were equipped with local SIM card for contact and they did communicate with each other during their stay. 94.The title shown in their respective name cards tend to boost their “status” in the jewellery trade. It is of interest to describe the name cards of the five defendants that they provided to the organiser when they registered at the counter. D1’s name card had words printed on both sides of the card. On one side is in Mongolian language; on the other side in English with words “Diamond Key Company Limited, ODGEREL Ul-oldokh, Senior Manager”. There is a picture of diamond on both sides. 95.D2’s name card is a bit of low quality and only one side of the card had words in Mongolian language. There are two telephone numbers and a logo. 96.D5’s name card looks basically the same as that of D2’s, with two telephone numbers and the same logo. 97.D3’s name card looks different with printing on both sides. One side is in Mongolian language and the other side in English. It states “NATURE KHAAN LLC, OTGON Tsogbadrakh, Vacuum Manufacturing Supervisor”. 98.D4’s name card is of a better quality, with printing on both sides. One side is in Mongolian language and the other side in English, stating “Mongolian Human Resources Management Innovation Academy, JARGAL Chimed, Senior Manager”. 99.I have no doubt that these name cards were prepared in advance to facilitate them to register as a buyer in the show. That also indicates it was not and could not be their impromptu act to go to attend the show just by chance when they saw an advertisement either in Hong Kong or on the Internet. 100.There is no dispute that all five defendants came from Mongolia. They know each other and on 5 March they all went to the show. They caused the buyer’s registration form be filled in with their particulars. The staff of the show checked their passports and each of them was issued a buyer’s badge. Their movements were recorded. 101.There is also no dispute that diamonds and coral items, subject matter of Charge 1 and 2 respectively, were stolen and some of those stolen properties were found in D3’s suitcase. D1, D3 and D4 stayed in the same room of the guesthouse in Mirador Mansion. 102.I do not believe that the defendants just met each other by chance and they agreed to go to the show on the same day. The only reasonable inference is that D1, D3 and D4 came to Hong Kong to join D2 and D5, who came to Hong Kong via Lo Wu a few days earlier. They came all the way from Mongolia. Each party had various telephone communications. It is abundantly clear that they were in one group and took action in concert as far as going to the show is concerned. I cannot see any other possible explanation as to the coincidence of their appearance in the show. No one spotted the theft when the defendants were at the scene. The victims discovered the theft at a later stage. 103.D5’s fingerprint impressions were found in a diamond certificate, on a wrapping paper and a plastic bag containing, inter alia, a diamond, as stated in paragraph 13 of the Admitted Facts. These items were found inside D3’s suitcase. D5’s impression was also found on D1’s business card and so was on D5’s own business card, both of which were stapled to their respective registration form. It could not be a coincidence. D4 in her VRI admitted that she followed the group to the show and she was given some items by D2 when they were at the booth. Although there is no CCTV footage in respect of the Charge 2, the recovery of the stolen coral chain and the coral beads speaks volumes as to the existence of a theft. 104.Although the conduct of D2 was suspicious when she joined the other defendants to go to the show, I have a reasonable doubt as to her involvement in these two theft cases. That is so even though there were 37 calls between D2 and D5. There is no admission on her part nor is there any fingerprint impressions on the package of those stolen properties. The CCTV footage is not clear enough to show that D2 received some items from other culprits. 105.As mentioned in paragraph 22-93, Archbold Hong Kong 2013, the doctrine of recent possession, which is no more than the application of common sense, applies equally to thefts other than in the course of a burglary, whether a pickpocketing or an armed robbery. Evidence could not and should not be considered in isolation and when all the evidence are canvassed in totality and on the whole, the inference that can be drawn can be compelling. Verdict 106.Taking all the circumstances into account, I find that the prosecution failed to prove the charges against D2 and I acquit D2 of the two charges accordingly. 107.On the other hand, based on the abovesaid analysis, I find that the only reason and irresistible inference is that the defendants, except D2, committed the first charge. 108.I convict D1, D3, D4 and D5 of the 1st charge. 109.As regards the second charge, there is no dispute that the stolen property of the second charge was found in D3’s suitcase. I have no doubt that the doctrine of recent possession is also applicable in the present case. 110.I have considered the position as enunciated in Archbold Hong Kong 2013, paragraph 22-225 to 22-229, relating to the alternative charge of theft and handling. D1, D3 and D4 lived in the same room in the guesthouse. They went to the show together. The first and the second offences were perpetrated in the same show on the same day. I find that they acted in concert. I will rely on section 32 of the Theft Ordinance and the alternative verdict of the schedule to the Ordinance. 111.I find that D1, D3 and D4 are guilty of the offence of handling stolen goods under section 24 of the said Ordinance. 112.I acquit D2 and D5 of the second charge. 113.To conclude, I convict D1, D3, D4 and D5 of the 1st charge and D1, D3 and D4 of the alternative verdict of handling relating to the second charge.
Please refer to CACC393/2013 for the relevant appeal(s) to the Court of Appeal. |
Cases cited in this judgment
Further hearings and rulings under DCCC 476/2013