HKSAR v. Yu Sik Fun and Another

DCCC 757/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 757 OF 2013

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BETWEEN

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REASONS FOR VERDICT

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1.The defendants were jointly charged with an offence of theft. D1 pleaded guilty to the charge but disputed certain facts alleged by the prosecution. D2 pleaded not guilty.

2.The prosecution alleged that at about 3.50pm on 13 June 2013 the defendants stole a smartphone, P2,  from the travel bag of an unknown male whilst he was travelling up an escalator in the Kowloon MTR Station.

3.The prosecution alleged that before the actual theft the defendants had been observed behaving suspiciously by a plain clothes police officer, PW1. PW1 alleged that he saw the defendants following the victim on to the escalator. PW1 alleged that D1 took up a position immediately behind the victim and D2 stood behind D1. PW1 alleged that he saw D1 act as if he were unzipping the zip on the outer pocket of the victim’s travel bag and then removed P2. PW1 alleged that he then saw D1 pass P2 to D2 and at that stage he moved up the escalator to arrest them.

4.PW1 alleged that there was a struggle on the escalator during which he sustained some injuries and he later detained and handcuffed the defendants with the assistance of a passerby and some security guards.

5.D1 did not dispute  that he stole P2. He maintained that there was no suspicious behaviour at the MTR concourse before the theft. He said that he did not unzip the victim’s bag, he did not pass P2 to D2 and there was no struggle as alleged by PW1. A Newton Enquiry was held in relation to the disputed evidence.

6.D2 maintained that he took no part in the theft.

Prosecution Evidence

PW1

7.PW1 said that at the time of the offence he was attached to the Railway Police Division. On the day in question, at 3,30pm  he was on plain clothes duty at the Kowloon MTR concourse when he spotted the two defendants standing near to a 7/11 store observing a man who was re-packing his luggage. The 7/11 shop is shown in photograph 8 of a Photograph Album produced as Exhibit P1. PW1 said that the defendants observed this man for about 10 minutes until the man left. PW1 said that they then observed other persons in the station paying particular attention to their luggage.

8.PW1 said that at 3.50pm he saw the defendants following the  victim  on to the escalator leading to the next level of the station where there is a shopping mall. PW1 said that before they got on to the escalator D1 said something to D2  and pointed in the direction of the victim. PW1 said that at that time the victim was pulling a wheeled travel bag. PW1 said that the victim got on to the escalator with the travel bag on the step behind him. PW1 said that D1 took up a position on the step behind the bag with both hands on the each of the handrails. PW1 said that D2 stood directly behind D1, with his hands also on each of the handrails. PW1 said that D1 and D2 looked around them. PW1 said that as they were towards the top of the escalator he saw D1 squat down and move his hand as if  to unzip a pocket on the outside of  the victim’s travel bag and he saw that he then removed a black object from the pocket which he then passed back to D2 who held the object in front of him.

9.PW1 said at that stage he moved forward, shouted out that he was a police officer and had seen a theft and got hold of D1 and D2 by their shoulders. PW1 said at that stage D2 dropped the black object on to the escalator.  PW1 said that D1 and D2 struggled and they fell on to the escalator. PW1 said he shouted for assistance and a passerby came to assist him. PW1 said that he later subdued and handcuffed the defendants and the passerby brought to him the black object he had seen PW1 take from the victim’s bag which turned out to be the smartphone, Exhibit P2.

10.PW1 said he sustained injuries to his knees and lower legs and was on sick leave for 5 days. PW1 showed his right leg where I could clearly see a one inch scab below the knee of  his right leg. PW1 said that this injury had been caused during this incident.

11.PW1 agreed in cross-examination that he had made no note of the defendants watching the man repacking his luggage outside 7/11. PW1 agreed he made no note of D1 speaking to D2 and gesturing to him before they got on to the escalator to follow the victim. PW1 said he recorded that they had behaved suspiciously. PW1 said he recalled his incident clearly as he had been injured.

12.PW1 denied that the defendants had simply been standing on the concourse talking before the theft occurred.

13.PW1 said that after the arrest of the defendants he went to hospital for treatment and later made the entries in his notebook at about 8.30pm.

Evidence of D1

14.D1 elected to give evidence. He told the court that he is aged 59 and educated to primary 6 level. He lives on public assistance. He said that at the date of the offence he was living in a public housing estate in Wong Tai Sin. He said that he has known D2 for 10 years. He said he did not know where D2 lived.

15.D1 said that on the day of the offence he telephoned D2 at about 1.00pm and they arranged to meet up outside the 7/11 at the Kowloon MTR station so that they could go to the China Travel Agency so as to make timetable enquiries about traveling to China by bus. D1 said that they wished to go there to sell parallel goods. D1 said that he walked to Wong Tai Sin MTR station and caught the MTR to Kowloon MTR.

16.D1 said that he arrived at the Kowloon MTR station some time after 3.00pm and after meeting up with D2 they chatted for about 10 minutes whilst standing near the rail opposite the 7/11 shop as shown in photographs 1 and 2. D1 said that later on he told D2 that he was leaving and he walked to the escalator where the theft took place as shown in photograph 2. D1 said that on the way to the escalator he noticed the victim approaching the escalator pulling a travel bag behind him. D1 said he noticed that the zipper on the bag was half open and that P2 was protruding from the bag.

17.D1 said that the victim stood on the right hand side of the escalator with his bag on the step immediately behind him. D1 said that he stood on the step behind the bag. D1 said that when they were about 5 steps from the top of the escalator he squatted down and removed P2 from the bag. D1 said that almost immediately he was grabbed by the collar from behind and pulled down to the escalator and he dropped P2. D1 said he injured his back and was later treated for scratches at hospital.

18.D1 said that when he was grabbed by PW1, PW1 did not say anything and that PW1 did not speak  to him until they had got off the escalator.

19.D1 said he had no idea that D2 was on the step behind him on the escalator until after he was grabbed by PW1. D1 said that he never handed P2 to D2.

20.D1 said when he was interviewed by the police after his arrest he told them that D2 had nothing to do with the theft.

21.D1 said that after he followed D2 on to the escalator intending to steal P2 he never looked around him.

22.D1 denied that he was at the MTR with D2 specifically looking for opportunities to steal.

Directions

23.I reminded myself that the prosecution have to prove the facts disputed by D1 and the elements of the offence against D2 beyond reasonable doubt. There is no onus on the defendant.

24.D2 elected not to give evidence and no inference can be drawn against him for doing so.

25.I reminded myself that the evidence given by D1 was admissible for and against D2.

26.I reminded myself that if I reject some of the evidence of D1 that did not mean that the prosecution version of events was correct or that D2 was guilty. If I were to reject D1’s evidence I am required to consider the evidence I did accept and decide if that established the disputed facts alleged in relation to D1 and the guilt of D2 beyond reasonable doubt.

Evaluation of the evidence

27.It was not disputed that D1 and D2 were together inside the Kowloon MTR station at 3.30pm on the material day. PW1 said his suspicions about D1 and D2 were aroused when he noticed them  outside the 7/11 shop observing for about 10 minutes  the baggage of a male who was repacking his luggage.  I noted that the evidence of PW1 that D1 and D2 were standing outside the 7/11 shop was not challenged but D1 said that they were standing at a rail on the opposite side of the large open space in front of the 7/11 shop as shown in photograph 1.

28.PW1 said that he later saw the defendants  observing the bags of other persons in the area. PW1 said that the defendants later went to the escalator following the victim and that D1 was speaking to D1 and pointing at the victim. D1 said this never happened. PW1 said that once on the escalator the defendants were looking about them. He alleged that D1 made gestures as if unzipping the victim’s bag and passing P1 back to D2. All this was disputed. It was not in dispute that there was a struggle on the escalator after the theft but different versions were given as to the circumstances.

29.I noted that PW1 had not made any entries in his police notebook or witness statement concerning his allegations that he saw the defendants watching the bags of  others or D1 speaking to D2 and signaling to him just before they followed the victim on to the lift. He merely recorded that they were behaving suspiciously. PW1 said he could recall the circumstances of this case as he was injured and was on sick leave for 5 days. I also noted that shortly after the incident PW1 went to hospital for treatment and  made the entries in his  notebook at about 8.30pm.

30.I did not believe the evidence of D1 as to why he and D2 were at the Kowloon MTR. I was sure he was lying. I accepted the evidence of  PW1 that when he noticed the defendants at the station at 3.30pm they were behaving suspiciously and that was why he put them under his observation.

31.I did not believe D1’ s evidence that he was simply chatting with D2 at the station. I did not believe D1’s evidence that he had no idea D2 was standing behind him on the escalator at the time the offence was committed. D1 claimed that although he had followed the victim on to the escalator and did not steal P1 until he was near the top of the escalator he did not look around or behind him to see if he was being observed.

32.I was sure that D1 and D2 were acting in concert and that when they got on to the escalator D2 stood directly below D1 and both of them were gripping both handrails. I did not believe that P1 was protruding from the bag of the victim. This had never been put to PW1. I accepted the evidence of  PW1 that he had a  good view of what happened on the escalator. PW1 was on duty looking for pickpockets. He had been observing the two defendants for 20 minutes before he saw the defendants following the victim on to the escalator. PW2 stood directly behind them. This was the obvious opportunity for the offence to be committed. I was sure D1 did make movement with his right hand as if he were unzipping the victim’s travel bag before he stole P2. I was sure he handed P2 to D2 who was immediately behind D1.

33.I was sure that thereafter the officer declared his identity and took hold of the defendants and they both resisted. It was not in dispute that the officer sustained in juries as a result of a struggle on the escalator.

34.I am satisfied so that I am sure that D1 and D2 were acting together. I did not believe the version of events given by D1. I was sure that the defendants were at this busy MTR station looking for opportunities to steal and that they did steal P2 in the circumstances described by PW1. Accordingly, I convict D2 of the offence charged and accept the prosecution summary of facts in relation to D1.

Please refer to CACC381/2013 for the relevant appeal(s) to the Court of Appeal.