HKSAR v. LAKHVIR SINGH AND OTHERS

DCCC 674/2019 & DCCC 253/2020 (Consolidated)

[2020] HKDC 950

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 674 OF 2019 AND 253 OF 2020 (CONSOLIDATED)

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

1.  D1 and D3 pleaded guilty to one charge of “Burglary”[1]. D2 pleaded not guilty to one charge of “Handling Stolen Goods”[2]. This trial concerns D2 only.

Admitted Facts

2.  D2, who was in the company of D1, was arrested by police on 28 May 2019 in Hong Kong. On his arrest, he was searched and inside a backpack in his possession was found:

i)  a Nike cap[3];

ii)  a Puma cap[4]; and

iii)  a Nike shoe[5].

3.  D2 was wearing a pair of Nike wristbands[6] at the time of arrest.

Prosecution Case

4.  Prosecution called 3 witnesses:-

i)  Mr. Lee Kim Ching (“PW1”);

ii)  PC 10198, D2’s arresting officer; and

iii)  D3.

5.  PW1 was the owner of Apex Sports Company Limited, which was a sports shop on G/F No. 75-77 Fa Yuen Street, Mongkok, Hong Kong (“the Shop”). On 27 May 2019, PW1 closed the Shop and left at around 11:30 p.m. On 28 May 2019, at around 11:00 a.m., the alarm of the Shop went off. PW1 returned to the Shop and found many goods were on the floor inside the storeroom. The metal sheet of rear door had been piled open. Some goods were missing. PW1 then called the police.

6.  PW1 saw signs of ransacking. After checking inventory, PW1 found the following items were missing:

i)  9 pairs of shoes;

ii)  36 caps;

iii)  38 pairs of gloves;

iv)  9 headbands; and

v)  39 pairs of wristbands.

7.  The total price of missing items was about HK$15,300.

8.  PW1 confirmed items shown in photo 7 – 14 belonged to the Shop.

9.  D3 gave evidence for the prosecution. D3 said he was with D1 in the morning of 28 May 2019. D3 was drunk, after consuming alcohol, Ice and Heroin. D1 and D3 went to a back alley. Then, D3 decided to burgle. He pushed open the back door, as shown in photo 6. He then opened the door inside, as shown in photo 4. D3 used the broom to push the goods over. He then took the goods, while D1 found a luggage and a recycle bag from the back alley. D3 put the stolen items in the luggage and recycle bag. D1 and D3 then left.

10.  After about 2 to 3 minutes’ walk, D1 and D3 met D2 in the Ladies’ Market by chance. D3 told D2 he stole the goods. D2 then told D3 to give him the goods, and D2 would sell it for D3. D3 then gave the stolen goods to D2. D3 then left. D1 remained with D2.

Defence Case

11.  D2 did not give evidence. He did not call any witness.

Issues

12.  The issues are:

i)  Whether the items found on D2, Exhibits P4 – P7, were stolen from the Shop; and

ii)  Whether D2 had any knowledge they were stolen goods.

13.  Burden of proof is on the prosecution. Standard of proof is beyond reasonable doubt.

Whether Exhibits P4 – P7 were stolen from the Shop

14.  Defence argued that prosecution cannot prove the goods were stolen from the Shop because:

i)  There were no markings on the wristbands and shoe. PW1 just assumed they were from the Shop.

ii)  Both caps had labels and model numbers were written on it. However, one of the labels was written by PW1’s staff. Another was only “probably” by PW1.

15.  However, PW1 is the shop owner who also worked in the Shop. Each cap had a label attached to it. Each label had model number and colour written on it. The labels were the Shop’s labels. Even PW1 did not write the labels, he could still recognize the Shop’s label. As I accept PW1 as an honest and reliable witness, I accept his evidence that the two caps came from the Shop.

16.  Regarding the wristbands and the shoe, there were similar products sold in the Shop. They were found on D2, who also possessed the two caps from the Shop. D3 told the court he gave those items to D2. If the court believed D3, there are sufficient evidence to draw the necessary inference that the wristbands and shoe were stolen items from the Shop. I will deal with D3’s credibility below.

Whether D2 had any knowledge they were stolen goods

17.  It is the prosecution case that D3 told D2 the goods were stolen before he passed the goods to D2. It is important to know how D3 passed the goods to D2 and what was said at that time. They would show whether D2 had the requisite knowledge. Prosecution relied solely on D3’s evidence to prove D2 knew the goods were stolen goods. Regarding D3’s evidence, I have the following observations:

i) D3 had 7 criminal records, with 5 convictions related to dishonesty. By giving evidence, D3 personally had something to gain, namely a reduction in sentence.

ii) D3 consumed alcohol and drugs shortly before the burglary. He cannot remember details of the burglary, including the date and time of offence. He can only remember it was after 7:00 a.m., but evidence shows the burglary occurred around 11:00 a.m.

iii) D3 had different versions on whether D2 was present during the burglary: In court, D3 said he and D1 burgled the Shop, then they met D2 at the Ladies’ Market, 2-3 minutes’ walk away from the Shop; In his non-prejudicial statement made on 17 September 2020 (“the NPS”), D3 mentioned D1, D2 and he had a stroll in the vicinity of Mongkok. Then they walked to the rear alley. D3 burgled the Shop, D1 stood at the metal grill, and D2 was standing outside. The difference in these two versions are significant. If D2 was standing outside when D3 burgled the Shop, there was no need for D3 to tell D2 the goods were stolen items. D2 would have known that already.

iv) D3 also gave different versions on what happened after they burgled: In the NPS, D3 said they all left separately; In his video recorded interview made on 6 February 2020 (“the VRI”), D3 said D1, D2 and he had meals together, then left. In examination in chief, D3 said he gave the goods to D2 and then he left. D1 and D2 stayed behind. In cross examination, D3 said they went to consume drugs together before separation. D3 gave 3 different versions of the same event on 3 occasions.

v) In the VRI, D3 said all the goods he stole were found on D2. In court, he said the two caps, wristbands and shoe were only part of the stolen goods.

18.  D3 had altogether three opportunities to tell what happened in the burglary: the VRI, the NPS and in court. However, D3 gave different versions of events on these three occasions. Given the inconsistencies found in D3’s evidence, D3 was affected by alcohol and drug, and his dishonesty background, I am unable to accept D3’s evidence.

19.  As a result, the court does not know what was said between D2 and D3 when D3 passed the goods to D2. I am unable to find beyond reasonable doubt that D2 knew the goods were stolen from the Shop. Therefore, I found D2 not guilty of Charge 2.