HKSAR v. EXAVIER, FABIAN CARLO

HCMA 180/2024

[2024] HKCFI 2788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 180 OF 2024

(On appeal from KCCC 2977/2023)

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J U D G M E N T

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1.  The appellant was charged with one count of theft, contrary to section 9 of the Theft Ordinance, Chapter 210, to which he pleaded not guilty. On 9 April 2024, the appellant, represented by counsel, was convicted after trial. By filing a notice to appeal on 16 April 2024, the appellant appealed against his conviction.

Prosecution Case

2.  Part of the prosecution case was not in dispute, and agreed upon by the parties by way of Admitted Facts, P1. 

3.  At around 2:20 am on 29 October 2022, Senior Inspector Morley disguised himself as a drunk person in a decoy operation.  He sat on a bench next to the public toilets in Chatham Road South, Tsim Sha Tsui.  Next to him was a brown handbag with a wallet, containing $1,000 cash and some bank cards, as well as a mobile phone. The brown handbag was, at a later stage, found on a bench with the zipper opened, and all those items inside, collectively known as “the stolen property”, were found missing. 

4.  At around 4:30 am on the same day, the police in the vicinity arrested a Tanzanian male, “Juma”, who had the stolen property found in his left back pocket.  He was charged and eventually pleaded guilty to theft and was convicted.  

5.  At around 4:32 am on the same day, DSGT4223 (“PW3”), also in the vicinity, gave chase to the appellant and pulled down a green sling bag from him, but the appellant managed to flee.  The sling bag was found to contain various personal items, including a Form 8 Recognizance in the appellant’s name.

6.  More than a year later on 11 November 2023, the appellant was arrested when he was intercepted in a taxi. 

7.  Various CCTV footages and photographs depicting the offence location and capturing the appellant and the others at the material times were produced as exhibits.  The identity of the appellant and his presence at the offence location were not in dispute.  

8.  The prosecution called a total of three prosecution witnesses, they were Sergeant 48663 (“PW1”), the observation officer; Detective Sergeant 1072 (“PW2”), the leader of the arrest team; and Detective Sergeant 4223 (“PW3”), a member of the arrest team. 

9.  The prosecution case in brief was that three persons, that is the appellant, Juma and a wanted person known as “WP”, acting in joint enterprise to steal from Inspector Morley the stolen property. 

10.  PW1 was the observation officer who witnessed two separate incidents in the night in question, involving three males approaching Inspector Morley. 

11.  In the first incident at around 3:04 am, PW1 saw the three males approaching the bench where Inspector Morley was sitting.  And after a minute or two, the appellant sat on the same bench looking towards the public toilets.  The three males remained in the vicinity for around three minutes.   PW1 observed the appellant and the WP looking left and right, but no further actions had been taken.  The three males then left and walked towards the Granville Road exit.  Inspector Morley remained in the same position.  

12.  In the second incident which took place in an hour and a half, at around 4:30 am, Juma and the WP walked towards Inspector Morley from Chatham Road South exit.  They walked past him towards the public toilets, and then disappeared.  Two to three minutes later, the appellant walked slowly towards Inspector Morley, stood in front of him at a distance of less than a metre.  The appellant was seen looking at Inspector Morley and then at the direction of the public toilets, waving his palm and appearing to be signalling others to come to his position.

13.  Less than half a minute later, Juma and the WP walked towards Inspector Morley from the direction of the public toilets. 

14.  The appellant then reached out his hands toward Inspector Morley, but PW1 could not see if his hands had touched Inspector Morley as PW1’s view was blocked by Juma. After five to ten seconds, the three males left together towards Chatham Road South exit.  PW1 informed his colleagues via radio to intercept the three males but they started running towards different directions. 

15.  PW2 was the leader of the arrest team.  At around 4.35 am, that is in the second incident, he entered the park when he heard on the radio that the three males appeared again.  He saw the three males approaching the bench where Inspector Morley was sitting.  The appellant had his back slightly turned towards PW2 and was facing Inspector Morley.  PW2 saw the upper part of the appellant’s body moving slightly downwards.  PW2 could not see the hand movements of the appellant as his view was blocked.  He nevertheless saw that the appellant and Juma bent down for about five seconds.  They then left and walked towards the Chatham Road South exit, with WP following shortly afterwards. 

16.  At this point, PW2 decided to intercept the three males, as he had received information that Inspector Morley had been pickpocketed.  PW2, who was in plain clothes, walked towards them.  The three males suddenly started to run in different directions.  PW2 tried to intercept the WP but failed. 

17.  PW3 was a member of the arrest team.  At around 4.32 am, that is in the second incident, he was instructed on radio to intercept the three males.  The appellant and Juma ran directly towards PW3. Juma was intercepted by a colleague.  PW3 attempted to apprehend the appellant but the appellant ran fast.  PW3 could only manage to pull down the appellant’s sling bag.  The appellant kept running across the dual carriageway of Chatham Road South until PW3 lost sight of him.   The pursuit lasted for around a minute. 

Defence Case

18.  The appellant elected not to give evidence and called no defence witnesses.  The defence’s version, as could be seen from the cross-examination of the prosecution witnesses as well as the closing submission by defence counsel, was that the appellant did not dispute Juma had stolen the stolen property from Inspector Morley but that the appellant himself was not part of the joint enterprise. 

19.  The defence also challenged the quality of PW1’s observation evidence and the inconsistencies among the witnesses’ testimonies in court and their respective witness statements. 

20.  The defence argued that the whole incident was very brief, that Juma’s stealing act might be a spontaneous act and that the appellant did not share a common purpose with him. 

21.  It was not disputed that the appellant had fled from the scene but it was submitted by the defence that there might be innocent reasons for his flight. 

The Magistrate’s Findings

22.  The magistrate started off by reminding himself about the burden and the standard of proof, the appellant’s right to remain silent and the relevant direction on flight.  

23.  He then analysed PW1’s evidence with reference to the defence’s criticisms about distance and lighting and eventually found him to be a credible witness and his observation evidence reliable.  The magistrate did a similar exercise for PW2’s evidence, and also found his observation, in about 20 metres away without obstruction and with sufficient lighting, to be reliable evidence.  The magistrate had considered but did not find the respective evidence of PW1 and PW2 in any way contradictory as criticised by the defence counsel.

24.  For PW3, whose evidence was not much challenged, the magistrate found him to be a credible and reliable witness. 

25.  The magistrate, in general, found the evidence of PW1, PW2 and PW3 credible and reliable, and relied on them as the basis for his findings of facts.  The magistrate found, as matters of facts, that at around 3.04 am, the appellant, Juma and WP approached the bench where Inspector Morley was sitting, and stayed there for around three minutes.  The appellant sat on the bench where Inspector Morley was sitting.  They did not steal anything in this first incident at that time. 

26.  At around 4:35 am the same night, that is in the second incident, the three males appeared again.  This time the appellant waved his hand to signal Juma and the WP to approach Inspector Morley.  They were chatting and looking around for about 10 seconds, before the three of them stood around Inspector Morley.  The appellant and Juma moved downwards towards Inspector Morley, and during that five to ten seconds, the stolen property was taken away from Inspector Morley’s brown handbag and kept in Juma’s left back pocket.  The appellant, Juma and WP then left towards the exit of Chatham Road South together. 

27.  At around that time, PW1 informed his colleagues in the vicinity to intercept the three males.  WP ran towards the direction of Auto Plaza, the appellant and Juma ran towards the direction of the public toilets.  PW3 attempted to intercept the appellant but could only manage to pull down his sling bag during the chase, and the appellant ran away.  Juma was arrested at the scene with the stolen property recovered from him. 

28.  The magistrate then considered the appellant’s flight and all the defence suggestions of innocent reasons, like the appellant’s fear or his automatic response triggered by WP’s flight. 

29.  The magistrate found that the appellant was in a close proximity to Juma and Inspector Morley at the time of the offence, and he must be aware of the acts of Juma and WP.  The stolen property was taken out from Inspector Morley’s handbag, and then put in Juma’s left back pocket shortly.  Juma was caught red-handed during the chase. PW3 had yelled “Police” in English in a close distance of two to three bodies’ length when PW3 was directly facing the appellant and Juma.  The appellant must know the identity of PW3 and other policemen, but he did not stop running.  The magistrate was aware that some of the policemen were holding batons, but they had never used or even raised any of them to threaten the appellant. 

30.  After considering all the evidence and the circumstances, the magistrate concluded that the only reason for the appellant’s flight was that he had committed the crime together with Juma and WP, but not for any innocent reasons suggested by the defence.  He provided several reasons as follows:

(a)  The fact that the offence happened in the small hours of a park did not make much difference as suggested by the defence that was the reason for the appellant’s fear.  The appellant, Juma and WP had been walking around in the vicinity of the offence location for more than an hour before the offence.  CCTV footages showed that they were wandering around and chatting with each other.  They stopped near Inspector Morley twice that night.  Apparently, they were not particularly afraid of walking around in the area at night when few people were on the street. 

(b)  The magistrate did not believe if the appellant was innocent, he would have the same reaction of the WP to flee.  Further, the appellant did not flee in the same direction as WP but at the same direction with Juma, from whom the stolen property was found in his left back pocket.  The policemen chasing them never tried to attack them, and there was no reason why the appellant had to turn around and find another way to escape, if it was only an automatic response triggered by WP’s flight. 

(c)  The appellant must know the identity of PW3 but he did not stop running.  The magistrate did not accept that the appellant ran away because he was in fear of being assaulted by police.  He did not believe an innocent person, irrespective of his ethnicity, who had just witnessed a crime, would run away from the scene instead of trying to explain what had happened to the police.

(d)  The magistrate noted that the appellant continued to flee even though PW3 gave chase to him and managed to pull down his green sling bag which contained important personal documents like his Form 8 Recognizance and some valuables.  The magistrate did not believe that an innocent person would simply give up his personal belongings and his ID document without asking the person who chased him what happened and trying to get them back.  The only possible reason was that the appellant had committed the crime with Juma and WP and had to escape from police apprehension.

31.  The magistrate drew the only reasonable and irresistible inference that the appellant was acting in concert with Juma and WP, with a common purpose of stealing from Inspector Morley.  Upon reaching such conclusion, the magistrate had taken into the account:

(a)  Juma had stolen the stolen property from Inspector Morley.

(b)  The appellant, Juma and WP had appeared together in the vicinity of the offence location and stopped around Inspector Morley for around three minutes about an hour before the offence was committed.

(c)  The appellant, in an hour or so later, returned with the other two and approached Inspector Morley again. When there were no people around, the appellant waved his hand to signal the other two to approach Inspector Morley.  They then stopped together in close proximity to Inspector Morley.  The appellant and the WP must be aware of what Juma was doing.  They must also know that stolen property was taken away from Inspector Morley’s bag at that time.

(d)  Juma’s act could not be spontaneous or opportunistic without the appellant and the WP knowing in advance.  They were obvious acting as lookouts for Juma when the stolen property was taken.

(e)  More importantly, they left the scene together after the theft.  When policemen appeared to intercept them, they then started running in different directions. The only reasonable inference was that they were acting in concert with the common purpose of stealing from Inspector Morley. 

Ground of Appeal

32.  By his notice of appeal and two letters of 5 July 2024 and 6 August 2024, the appellant set out and relied on a total of five grounds of appeal.  In brief, they were:

Ground 1:  The magistrate erred in finding PW1 to be a reliable witness and in accepting his observation evidence.

Ground 2:  The magistrate erred in finding that there were no material inconsistencies between PW2’s written statements and his testimony in court.

Ground 3:  The magistrate erred in finding that the only reason for the appellant’s flight form the scene was that he committed the crime.

Ground 4:  The magistrate erred in finding an irresistible inference that the appellant acted in joint enterprise to commit the theft.

Ground 5:  PW1 and PW2 erred in their observation evidence.

33.  Today in court, the appellant insisted his innocence and said he knew nothing about the crime and did not take part. 

34.  Just five minutes before the court commenced, the appellant handed a letter for this appeal dated 9 August 2024, and for the very first time in that letter, the appellant complained about having been attacked or beaten up by the officers at the scene during the chase. 

35.  Upon my questioning, the appellant accepted that he did not go to see any doctor at any stage and he said that the wounds and the bruises on him were not serious.

36.  I noted from the record that the appellant was all along represented by counsel during the trial, and there had never been raised about any attack or misconduct by any police officer at the scene in the night in question.  Also, it was never said in any of the appellant’s previous notices or letters in relation to the alleged attack by police either. Only for the first time he raised such issue of attack in his letter just handed up to the court a few minutes before this hearing commenced. 

37.  I have considered all the said circumstances in relation to his recent allegation of attack.  I have no difficulty in rejecting it, as I find it without substance and that it had not taken place. 

The Respondent’s Submissions

38.  In relation to Grounds 1, 2 and 5, which concerned the credibility and the reliability of PW1 and PW2, the respondent submitted that the magistrate had carefully and thoroughly considered the evidence of the witnesses and provided detailed reasons for accepting their evidence. 

39.  Ground 3 was about the appellant’s flight.  The magistrate had properly directed himself on the law and had provided four sound reasons for concluding that the appellant fled because he had committed the theft with Juma and WP. 

40.  Finally, for Ground 4,  it is submitted that the magistrate had also clearly set out in his analysis the evidence that he relied upon in reaching his conclusion that the appellant was acting in joint enterprise with Juma and WP to steal.

41.  To conclude, the respondent submitted that the prosecution had proven the appellant’s guilt beyond reasonable doubt on the evidence and there were no errors in the magistrate’s assessment of the evidence.  The respondent invited the court to dismiss this appeal.

My Analysis and Decision

42.  According to the Court of Final Appeal’s decision in HKSAR v Hui Lai Ki [2024] HKCFI 7, magistracy appeals are to be conducted by way of rehearing, the judge must be satisfied that the appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. 

43.  Although an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law. 

44.  I have carefully considered all the prosecution evidence, in particular the observation evidence of PW1 and PW2, as summarised above.  I come to the same conclusion as that of the magistrate, that is all prosecution witnesses were credible and their evidence about what happened at the scene was reliable. 

45.  It is worth noting, in particular for this case, that the same group of three, including the appellant, appeared in close proximity to Inspector Morley not once, but on two separate occasions in just about an hour and a half.  And right then and there, at the end of the second occasion, the stolen property belonging to Inspector Morley was taken and eventually found on the person of Juma. All the above were not only clearly described by the prosecution witnesses, but also to a certain extent supported by the relevant CCTV footages produced at the trial. 

46.  The identity of the appellant was not in dispute as he was captured by the relevant CCTV footages.  The key issue was whether he was acting in joint enterprise with Juma and the WP in this theft.

47.  I did not lose sight of the clear evidence that the appellant was first seen in the first incident approaching and then sitting on the same bench next to Inspector Morley.  And in the second incident, he was even seen walking towards Inspector Morley, staying in front of and looking at him, and then waving his hand to signal others to come to his position. 

48.  I understand that the above observation evidence had been challenged or criticised by the defence during the trial, for example, in terms of distance and lighting.  I nevertheless was satisfied, as the magistrate was, that the officers were credible and reliable in their observation. 

49.  It is a matter of fact that they set off to participate in this decoy operation and were tasked specifically to make observation of suspects approaching Inspector Morley. They must have been very alert and were paying close attention to what was happening at the time. 

50.  More importantly, they were honest enough to admit that they could not see the hand movements of the group when the suspects came close to Inspector Morley, as the views of the officers were at some stages blocked.  But no doubt Juma had stolen from Inspector Morley as the stolen property was recovered from him almost right away, and that the appellant and the WP were apparently acting together with Juma as a group in the circumstances of the case.

51.  Apart from the observation evidence, there was also evidence of flight on the part of the appellant.  The magistrate had correctly directed himself on the law and provided cogent reasons as to why he concluded that the appellant did not run away for any innocent reasons and that his actions in running away could be regarded as evidence to support the prosecution case, to which I agree.

52.  All the grounds of appeal now relied upon by the appellant was basically a second attempt to argue the same issues at the trial, which had all been considered and rightly dealt with by the magistrate.  I have now re-considered all of them and do not find any merits in any of them.  All those grounds of appeal failed.

53.  To conclude, I am satisfied that there is sufficient evidence to prove beyond reasonable doubt the appellant’s guilt as part of the joint enterprise in this charge of theft. 

54.  The appeal is dismissed and the appellant’s conviction should stand.