HKSAR v. Aldefi and Another

DCCC 681/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 681 OF 2014

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Reasons for Verdict

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1.The defendant faces a charge of attempted theft. She is jointly charged with the 1st defendant and is said to have acted together with him.

2.The 1st defendant attempted to pickpocket the victim.  The defendant is alleged to have abetted this theft, or this attempt to steal, by acting as a lookout in the bank where the victim withdrew the money that the 1st defendant later tried to steal.  The defendant is the 2nd defendant in the indictment, but I will refer to her as “the defendant” for the purposes of this verdict.

3.The defendant denies she has given any assistance to the 1st defendant or that she even knew him at the time.  The issue at trial is whether the defendant had in fact assisted and acted together with the 1st defendant in an attempt to steal from the victim.

4.The defendant is an Indonesian female.  She was in Hong Kong as a visitor.

5.On 30 May 2014, the victim had gone to the HSBC Bank in Exchange Square, where he had taken out RMB30,000, which he placed in a knapsack which was on his back.  He then left.

6.The CCTV recording of the bank shows that the defendant was also in the bank at the same time as the victim.  She left the bank 13 seconds after him.  The victim then walked to the escalator by World Wide House, where the 1st defendant tried to steal from the knapsack by unzipping the zip at the top of the knapsack.  The victim felt a disturbance, and on reaching the bottom of the escalator, immediately accused the 1st defendant of trying to steal from him.

7.The defendant appeared at this point.  Shortly after this, a person or an officer of the Food and Environmental Hygiene Department also arrived.  He called the police.

8.The victim said that the defendant blocked their access to the 1st defendant.  She was also alleged to have said that she had seen the incident, and that she said it was an accident.

9.When the police arrived they arrested the defendant and questioned her both at the scene and in a later video‑recorded interview.  She said she did not know the 1st defendant. 

10.The telephones of the defendant and the 1st defendant were seized.  The call records were found and exhibited, and they showed that there had been contact between them on that day, and they had a number of mutual telephonic contacts.

11.The defendant gave evidence in the trial.  She said she was in Hong Kong to search out products for her boutique business in Jakarta.  She had arrived on 29 May.  A friend had given her a Hong Kong SIM card for her mobile phone.  She had also been given the number of a man called Tony, who could help her in her search for items for her boutique.

12.On 30 May she had arranged to meet Tony at Café de Coral in Central.  Before that she had gone to HSBC to see if some money had been remitted to her.  She had queued up at the counter, but had left, as her sister had told her on the phone that she would check with the bank in Indonesia.

13.When she was on the escalator she had heard a man shouting for help.  She saw he was Indonesian, so she thought she could help in translation, as she knew a little Punti and English.

14.She was eventually arrested by police.  She explained that she had never seen the 1st defendant before.  However, she now realises he was in fact Tony, the person she was planning to meet, but at the time of the incident had not seen before; and also, that she was unaware that that man, the 1st defendant, was the person she had previously called on the mobile phone.

The Trial

15.During the trial I heard from the victim, the FEHD officer, and the police officers who arrested and interviewed the defendant.  The evidence of the CCTV recording at HSBC was agreed, as were the call records of the defendant and the 1st defendant.

16.There was a preliminary issue in relation to the record of interview.  Whilst the defendant was at the police station she made two cautioned statements.  Their admission into evidence was objected to on the basis they had been obtained by oppressive treatment.  Furthermore, it was submitted that their admission would be unfair as the defendant had been denied access to a lawyer and to consular assistance.

17.The prosecution case was that the defendant had been fully advised of her rights.  She had requested to see a lawyer, but had later waived that right; and that when she was cross‑examined, she had agreed that she had wanted to make the video recording and had volunteered to do so.

18.The arresting officer said that she had informed the defendant of her rights by giving her the POL153 form in English, which the defendant had read.  The police officer who interviewed the defendant on video had also shown the defendant the same form, which was translated to her by an Indonesian interpreter.

19.During the first interview the defendant asked for a lawyer and also to obtain a lawyer through the Consulate.  The interview was suspended, and the defendant was supplied with a list of lawyers.  No contact was made with the Consulate.  Later on, the defendant contacted the officer and asked to conduct the interview without a lawyer.  The defendant had been told that the interview would not be conducted until the following day.  She had not wanted to wait so long, and so had asked to have the interview conducted without a lawyer.

20.The interviewing officer denied that she had told the defendant it would take a long time to get a lawyer.  However, it was Friday night, and she had indicated that the interview would not take place until the following morning if a lawyer was required.  It was also the case that when the interpreter explained to the defendant that she could engage a lawyer, he had also told her this:  “If you are engaging a lawyer, you may call for one, but that’s at your own expense.  That will be several thousand dollars.”

21.The defendant had said that she decided to conduct the interview because she was told it would take a long time to get a lawyer and it would be expensive.  The defendant, however, agreed in cross-examination that despite there being no lawyer or consular official present, she had wanted to carry on with the interview as she had nothing to hide; that she had not been under any pressure, and she had wanted to get on with it, to get her story told, and that had been her own conscious decision.

22.In deciding the question of admissibility, it was apparent that the interpreter had inappropriately informed the defendant of the position.  He had added an unnecessary addition to what should have been said.  Furthermore, it appears no attempt was made to contact the Consulate.

23.I considered that these omissions could provide a discretionary basis to exclude the statement.  However, the defendant had confirmed that she wanted to make the statement because she wanted to tell her account.  She herself had approached the police to restart the interview. Given this, I did not consider it to be a proper case to exercise my discretion in her favour.  The defendant had also indicated, as I said, she wanted to conduct the interview, and in fact in the whole of the trial the issue became somewhat otiose, as the defendant later gave evidence in the same terms as her video‑recorded interview.

24.The prosecution concede that the case against the defendant was circumstantial, and required the court to draw an inference against the defendant that she had acted in a joint enterprise with the 1st defendant.  They say the CCTV recording shows the defendant in the bank at the same time as the victim.  She leaves within a few seconds of the victim, and is present shortly after the 1st defendant is accused by the victim.  She then blocks the victim and the FEHD officer.

25.The defendant denies knowing the 1st defendant, which they say is proved to be a lie by the telephone records.  They say this can properly lead to the inference of guilt; that the defendant must in some way have assisted the 1st defendant, and this must be by her identifying him in some way.  The method of identification is not directly evidenced.  They had been in telephone contact, but not at the time of the incident.  Nevertheless, the prosecution say that is an irresistible inference that can be drawn from the facts of the case.

26.The defence say the defendant has properly explained why she called the 1st defendant earlier in the day.  There is no evidence, they say, that they had physically met before the time the 1st defendant was apprehended; that she has fully explained why she was in the bank; that the telephone calls she made in the bank were to her sister in Indonesia; that she was on her way to meet the 1st defendant, so it was unsurprising that they would both be in the vicinity of the escalator near World Wide House.  It was said that she was unshaken in cross-examination, and that in assessing her account, she was entitled to the benefit of the fact she has a clear record.

27.The undisputed evidence consists of the CCTV recordings and the phone records.  There was a CCTV recording in the bank on 30 May.  It is agreed both the victim and the defendant were in the bank at that time and can be seen on the CCTV camera.  At 1446 hours and 54 seconds, the victim can be seen in the bank holding a mobile phone going towards the exit.  The defendant is situated behind him at the end of a counter queue.  At 14:47:07, the defendant has left the queue and is moving towards the exit.  She is holding a mobile phone.  At 14:47:00, seven seconds earlier, the victim is at the exit.  He leaves two seconds later.  At 1447 and 11 seconds, the defendant reaches the same position, so she is at the exit and leaves nine seconds behind the victim.

28.The phone records disclose that on 30 May, the defendant calls the 1st defendant’s number at 1341 and 31 seconds. This is for 22 seconds; then at 1346 and 37 seconds, for 24 seconds.  The telephone number of the defendant and the 1st defendant have a number of common numbers that they called.  Particularly, they are 51337929 and 51324833.  Contact between these phones is particularly active around the time of the incident.  At 1344, the 1st defendant contacts 51324833.  At 1348, this defendant contacts 51324833.  At 1409, that number, 51324833, contacts the 1st defendant, and again at 1413, 14:46:65 and 14:47:32, 30 seconds after the victim left the bank.  At 1456 and 1458, the defendant contacts 51324833.  This must be about the time the 1st defendant is apprehended by the victim.

29.There is a clear connecting pattern between these three numbers.  In summary, the 1st defendant and this defendant contact the number around 1344 to 1348.  The number maintains contact with the 1st defendant, three calls, culminating in a call whilst the victim is in the bank, and another 30 seconds after he leaves.  The defendant contacts the number twice around the time the 1st defendant is apprehended.  There is a clear connection, and a connection that revolves around the timing of the offence by the 1st defendant.

30.It is not disputed that the defendant appears shortly after the 1st defendant is apprehended.  The victim says that the defendant spoke to him in Cantonese and said that she saw the 1st defendant bump into him accidentally and nothing happened.  She then stood in front of him and blocked his way, he says, allowing the 1st defendant to try to leave.  It is at this point that the FEHD officer arrived.

31.The FEHD officer said that when he arrived, the victim was blocking the 1st defendant, and that it was after this that this defendant arrived and said, in not fluent Cantonese, that the 1st defendant bumped into the victim accidentally.

32.Both defendants waited for the police.  On arrest, the defendant said she did not know him, that being the 1st defendant; she only heard him asking for help in Indonesian.  In her evidence the defendant said she did not see the incident.  She was not able to say and did not say that it was an accident.  She did not try to block the way to the 1st defendant, and she did not change what she said to the police officer.

33.In assessing this piece of evidence, I bore in mind that there was a significant divergence between the evidence of the prosecution witnesses and that of the defendant.  I also bore in mind the defendant’s clear record and its relevance to making findings about her credibility and reliability and propensity to commit offences of this nature.

34.Both the prosecution witnesses recalled the defendant saying that the 1st defendant’s act was accidental, and I consider it as inherently probable that the defendant must have said this.  As to the alleged blocking, all the victim was able to say was that the defendant stood in front of him.  The other witness confirmed this.  The defendant does not in fact deny that she was in that position.

35.I found that it was clear from this evidence that the defendant must have closely followed the victim on the same route after leaving the bank.  She came to the 1st defendant’s assistance after he was discovered by providing an innocent explanation for him which is clearly not true.

36.Turning to the defendant’s evidence, as I have noted, she is of clear record.  I have also noted the relevance of that to both the credibility of her evidence and her propensity to commit an offence of this nature.  I assessed her evidence in the light of all the evidence I heard in the case.  Of importance in the case is her evidence of her explanation for being in Central that day, particularly for being at the bank, and her contact with the 1st defendant by telephone.  The defendant said she came to Central to meet Tony, and she went to the bank to check if some money had been remitted within a bank in Indonesia.  She began to queue, but spoke to her sister, who was in Indonesia, who said she would check instead.

37.There was evidence the defendant made two calls to Indonesia around that time.  The defendant also said she came to the 1st defendant’s assistance because she heard him cry for help and because he was Indonesian, rather than because of any prior connection between them.

38.I assessed all the evidence.  The prosecution evidence showed a clear connection between the 1st defendant, this defendant, and also the number that they both called, that being 51324833.

39.The defendant says that must have been the case because they had mutual friends.  However, this clearly is insufficient as an explanation.  The significance of these contacts is that they focus around the time of the offence.  They are indicative of planning taking place.  The defendant is in the same place as the victim when the money is put into the knapsack.  She follows him to the scene of the crime.  She tries to exonerate the perpetrator.

40.The defendant attributes this to coincidence. This cannot be so.  Such a collection of events clearly could not be coincidental.

41.I find the defendant’s explanation for her presence at the bank and at the scene of crime as not credible, and I reject her evidence in its entirety.  She has not been truthful about these matters.

42.It is said by the prosecution that the defendant has told identifiable lies, and these can count against her as evidence.  On arrest, the defendant said she did not know the 1st defendant and had only heard him asking for help in Indonesian.  In the video-recorded interview, she said she had never met the 1st defendant before.  That was her evidence in court.  She had also denied having contacted him by phone.

43.The prosecution say these are lies that could be used against the defendant.  The defendant says she first met the 1st defendant at the bottom of the escalator, and only realised he was Tony much later, when she was brought to court.  The prosecution say this is proven to be a lie by their previous telephone communication.

44.I note the prosecution have no evidence that this defendant and the 1st defendant had ever met before.  The evidence shows they communicated by telephone on two occasions for a total of 46 seconds about one hour before the attempted theft.  So to say she did not know him or had met him may be economical with the truth, but not strictly a lie.  However, she did deny she had ever contacted him by telephone in the record of interview. However, there is also no evidence that when she called him, that the defendant knew the actual identity of the 1st defendant.

45.The fact that the defendant went to assist the 1st defendant, in my view, shows that she was aware he was part of what one could describe as the operational team conducting the attempt to steal. She may have been aware he was the person she had contacted earlier, so she had deliberately decided to deny about having contacted him by phone as she realised it would incriminate herself.  However, again, she may simply be deemed economical with the truth.  She may have been aware she contacted a member of the team, but not who he was.  She certainly prevaricated.  She has avoided telling the truth by not completely answering the questions.  It is not quite the same thing as an open lie.

46.Nevertheless, I consider that it is not necessary for the prosecution to directly prove a lie in respect of either of these utterances.  There is ample other evidence from which inferences against the defendant may be drawn.

47.The prosecution must prove the case against the defendant beyond reasonable doubt.  The burden lies on them to do so.  When an inference is to be drawn, it must be drawn to a criminal standard and must be the only reasonable inference that can be drawn.  To take part in joint enterprise, a person must be proved to have assisted or encouraged the commission of the events.

48.Where it has proved the defendant has lied, this is not itself evidence of guilt.  The court must be sure the defendant did not lie for innocent reasons.  Only then could it be used as evidence that supports the prosecution case.

49.In terms of the evidence that I have that has been proved, it is proved that the defendant contacted the 1st defendant twice by phone about an hour before the attempted theft took place.  I have rejected the defendant’s evidence as to why these calls took place; thus, the calls remain unexplained.  The 1st defendant committed an attempt to steal from the victim.  That is not disputed.  Clearly, his target must have been the RMB30,000 taken out by the victim at the bank shortly before.

50.The defendant was present in the bank contemporaneously with the victim, following him out within what must have been a short period; on the CCTV recordings, the length of which would be 11 seconds.  She had then followed him, pursued the same course as him, to where the attempt took place.  She then attempted to assist the 1st defendant by providing an explanation that was untrue.

51.Furthermore, this defendant and the 1st defendant had maintained contact with the same telephone number both before, during and after the attempted theft.  These calls are again, as I have rejected the defendant’s evidence, unexplained.

52.I consider that that accumulation of evidence allows an irresistible inference to be drawn that clearly proves beyond reasonable doubt that the defendant assisted in the commission of the offence. Clearly she was in the bank to identify what you could all a mark; information that must have been passed on to the 1st defendant for him to commit the offence of theft or to attempt to commit the offence of theft.

53.I consider the case is proved beyond reasonable doubt.  The defendant is guilty of the offence charged, and a conviction will be entered.