HKSAR v. Ganbold Munkh Erdene and Another

DCCC 435/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 435 OF 2014

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Reasons for Verdict

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1.The 1st defendant, Mr Ganbold, is charged with one count of theft. The prosecution allege that this defendant together with another man who is the 2nd defendant on the charge sheet, pick-pocketed the victim’s Louis Vuitton wallet in the early hours of the morning of 22 April 2014 while she was walking with her boyfriend in Cameron Road in Tsim Sha Tsui. The theft allegedly took place at around about 4.09 am. The victim is described as PW1. She was with her boyfriend who is PW2. They had been socialising and drinking in Tsim Sha Tsui and were on their way home looking for a taxi. PW2 held PW1’s handbag on his shoulder and PW1’s Louise Vuitton wallet was inside the handbag. They were walking along to near the junction of Cameron Road and Chatham Road South to look for a taxi to take them home.

2.At that location there were two plainclothes police officers who were on a burglary patrol.  The two police officers firstly saw the 1st defendant together with the 2nd defendant and they said they were acting suspiciously and looking at people and particularly their handbags.  They then saw the 1st and 2nd prosecution witnesses and saw the 1st defendant and the 2nd defendant follow them.  The police officers decided to separate. 

3.PW3 crossed the road and observed from a location by a telephone box.  PW4 went to the central traffic island in Chatham Road near Century Park.  PW3’s view was apparently partially obscured.  He said that what he could see was the 1st defendant follow PW2 closely with the 2nd defendant at his side, that is D1’s side.  D1 was in a black T-shirt and the 2nd defendant was in a white T-shirt.  He said that what he saw was eventually the 2nd defendant held a wallet in his right hand.  He then went over to apprehend the 2nd defendant who threw the wallet to the floor.  PW3 then intercepted the 2nd defendant.  The wallet was recovered from a nearby drain and in the photographic exhibits they are in photograph 5.

4.PW4’s observation was from a different location, from behind, ranging from 10 to 20 meters away because at one point he followed them.  He said he saw the 1st and 2nd defendants follow PW1 and 2 closely.  It was his evidence that he saw this defendant, the 1st defendant, stretch his left arm into the handbag on PW2’s shoulder and take out a rectangular object later identified as PW1’s wallet.  He passed this to the 2nd defendant, the transaction lasting about 5 to 8 seconds.  He then went over to intercept the 1st defendant.  That is a summary of the prosecution case.

5.In the defence case, the defendant did not give or call any evidence.  It is of course the case that no adverse inference can be drawn from this decision.  It is admitted that the defendant is a man of clear record.

6.The defendant’s case was made apparent from cross‑examination of the witnesses and this was that he had been on the other side of the road carrying a red wine bottle and it was put that he was subject to drink and that was his location when the theft occurred; that the theft had been committed by the 2nd defendant who has admitted that but that he, the 1st defendant, had no part in that.  He had been wrongly arrested and then allegedly assaulted by the police witnesses in a vehicle whilst he was being driven back in a police vehicle to the police station.  This necessitated the calling of a number of witnesses, PWs 5, 6 and 7 who had been in the vehicle. All the allegations put to the officers were denied by them.  There was no other evidence on that point.

7.Now in more detail, the 1st and 2nd prosecution witnesses confirmed they had been drinking since midnight until about 4 am and were looking for a taxi to take them home.  PW1 said that she noticed another person behind PW2 and there was an argument.  She saw two persons confronting each other and two police rush out.  Then two foreigners were pushed towards the wall. 

8.In cross-examination, she said that when she turned round, she only saw one foreign man who had bumped against her boyfriend.  She saw another man walking towards her.  She was asked “When you saw the second foreign male, what was the distance between you and him?” and she answered “He walked from the opposite side of the street”.  She then went on to say “Very soon after he got over, the police appeared”.  She did not see if the second foreign man carried anything.

9.PW2 said he felt something or someone was interfering with the bag.  He felt some vibration on the left shoulder where the bag was.  He saw two foreigners behind him.  He described them as South Asian and as dark-skinned.  He said there were two of them, one in front, one behind, about two to three body lengths from him.  When he first saw the two foreign men, they were pretending to walk past. 

10.In cross-examination, he disagreed that the other foreign man came from the opposite side of the road.  He said the lighting was not good and that is why he described the man as being dark-skinned. 

11.Both PW1 and 2 said they were slightly intoxicated.  Now the police witnesses, PW3 and 4, had seen the defendant acting suspiciously.  They identified them as D1 dressed in a black shirt and D2 dressed in a white shirt and that is how they were able to distinguish their identifications and their respective actions.

12.PW3 had observed from some 20 metres away across the road.  He saw the two defendants walk close to PW1 and 2 and saw the 2nd defendant in possession of the wallet.  He stopped D2 and saw PW4 stop D1.  He said the lighting was sufficient.

13.In cross-examination, he agreed that he did not see D1 touch the Louis Vuitton shoulder bag on PW2’s shoulder or see this defendant, D1, hold the wallet.  He disagreed that the two defendants were ever 20 metres apart with D2 following PW1 and 2 and D1 20 metres behind holding a bottle of wine.  He also denied there had been any assaults in the police vehicle.

14.PW4 said he saw the whole incident, that his view was clear and unobstructed and that the lighting was sufficient for him to see clearly.  At the location where the incident occurred he said the lighting was very good.  He drew and produced a sketch, P3.  After he had separated from PW3 he said he was between 15 to 20 metres away from PW1 and 2 and he followed them.  He was able to make the observation of the 1st defendant, this defendant, taking the wallet from the bag on PW2’s shoulder and identified him as the man who had done this.  He saw him pass the wallet to the 2nd defendant and the 2nd defendant throw the wallet to the ground.

15.In cross-examination, he disagreed that his view had been obscured at any time.  There was little traffic or passing pedestrians at that time of the morning.  He disagreed that D1 and 2 were 20 metres apart and that the 1st defendant carried a bottle of red wine in his hands or that he had been assaulted in the police van.

16.The other witnesses, PW 5, 6 and 7 were police officers, one police officer, van driver, sergeant, who denied that there had been any assault in the police van.

17.The 1st defendant is charged with the theft by way of pickpocketing in this case.  Theft requires the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it.  The charge is brought by the prosecution, the burden of proof remains on the prosecution throughout the trial to prove the case against the defendant, that must be proof to the standard of beyond a reasonable doubt. 

18.The 1st defendant is a man of clear record in Hong Kong.  This case is certainly relevant to his propensity to commit an offence of this nature, namely an offence of dishonesty.  In this case it is not disputed that a theft occurred, that PW1’s Louis Vuitton wallet was stolen or that the defendant was present.  It is not disputed the wallet was the property of PW1, that it was stolen and recovered from a street drain nearby.  It is said that theft was committed solely by D2 and that D1 is wrongly identified as the actual thief.  It is also said the evidence of the two civilian witnesses, PW1 and 2, contradicts the evidence of PW3 and 4 and that in any event PW4 was not in any event a reliable witness.

19.I will deal with the questions of the reliability of the prosecution evidence.  The submission of the defence was that the evidence of PW1 and 2 contradicted the evidence of PW3 and particularly PW4.  Firstly, PW1 had said that PW2 entered into a conflict with another man and that the second foreigner had walked towards them from over the street and that man did not steal the wallet.  It was said that this was in accordance with the 1st defendant’s cross-examination whereby it was put that D1 had come from over the street.  It was also said by PW1 that this man had not stolen the wallet.

20.PW2 had said that the place where the theft occurred was dark and that was why he had confused his identification of the defendant’s skin colour and possibly ethnicity.  This contradicted PW3 and 4’s evidence that the lighting was sufficient and good.  It was said a perusal of the agreed photographs, particularly photograph 5, showed that this area was poorly lit.  It was said that PW2 had originally confronted the 2nd defendant and only later had the 1st defendant joined him.  It was submitted that PW3’s evidence was of little use, he did not see the act of stealing, and finally, the 4th prosecution witness was unreliable and could not from where he was have seen the acts that he did see as he was at least between 15 to 20 metres away.  Both PW3 and 4 had given unreliable evidence about the lighting conditions.

21.The evidence showed that the only person with a clear view of this incident throughout was the 4th prosecution witness who was well-located to observe PW1 and 2; the incident occurred behind them; they were not aware of it until it was over.  PW3 fairly conceded that his view was obscured for at least part of the time.  Now I had to consider what weight should be attached to the evidence of PW4.  After considering all the evidence in this case, I was prepared to place full reliance upon his evidence. 

22.I did note the evidence of PW1 and I consider, having heard her, that she was subject to some confusion.  The evidence of PW2, PW3 and PW4 makes it clear that the only person who had crossed the road at that time was PW3 when he left his location across the road to move over the road to apprehend D2.  Her evidence that one of the foreigners crossed the road is clearly mistaken. 

23.Both PW1 and PW2 admitted that they were, in their words, “slightly inebriated”, they had been socialising for 4 hours.  Nevertheless, this would no doubt act to confuse or cloud their recollection of the sequence of events.  These matters are often shocking and sudden and a person’s sequential recollection of matters is often affected, especially if they are not professional witnesses.  I have no doubt that PW1 confused who the person actually crossing the road was.

24.PW2 did say there were two people behind him and one had moved past him which accords with the observations of both PW3 and PW4.  I am prepared to place full weight upon the evidence of both PW3 and 4 as being the only witnesses who actually saw what the 1st defendant did from a point of observation that allowed them to do it. 

25.There was clearly sufficient lighting.  The incident occurred during the hours of darkness but the area is well lit and clearly lit and clearly there was enough light for PW3 and 4 to be relied upon when they say “there was sufficient lighting”.  I noted the evidence on the photograph P5 in the photographic exhibits.  One does not know what kind of exposure was used.  I find it unhelpful in assessing the level of lighting and I place reliance instead on the evidence of the police officers. 

26.The evidence of both PW3 and PW4 was that their observations were from a distance.  Clearly a distance needed to maintained to prevent them becoming obviously conducting a surveillance but they were close enough for their account of the details of what they saw to be reliable. Between them they evidenced all the aspects of this theft.  The identification of the 1st defendant is reliable.  They relied on the clothing he wore and their later interception of him.  PW4’s identification of the 1st defendant was by way of recognition.  He had seen him prior to the incident, saw his actions and was with him after the arrests had been made in the police van.  Clearly his identification of the 1st defendant and his actions was reliable.

27.PW4’s evidence established that the 1st defendant placed his hand into the bag, PW1’s bag which was on PW2’s shoulder, took the wallet and handed it to D2.  It is plain the evidence has all the elements of theft against him beyond reasonable doubt. 

28.I do note that PW3 to 7 all denied any impropriety in the way D1 was treated later in the vehicle and I fully accept their evidence on this as well.  On the basis of the facts proved, I find the prosecution proved all elements of the offence against the 1st defendant beyond reasonable doubt and convict him accordingly.

Please refer to CACC315/2014 for the relevant appeal(s) to the Court of Appeal.