HKSAR v. SAJED MAHMOOD MINHAS

DCCC 958/2017

[2019] HKDC 1224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 958 OF 2017

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to one charge (Charge 15) of handling stolen goods[1]. Particulars of the charge are that he on 23 June 2017, in Hong Kong, dishonestly received a motorcycle, knowing or believing it to be stolen goods.

BACKGROUND

2.  The defendant was the driver of a motorcycle when he skidded and crashed.  Police was called and the defendant was taken to hospital for his injuries suffered.  Upon investigation, it was found that the license plate displayed on the bike did not match the registration documents.  Further investigations revealed that the bike was, in fact, stolen property and the defendant was charged for handling it.

PROSECUTION’S CASE THEORY

3.  It is the prosecution’s case that since the defendant was the driver of the bike, he was in possession of the bike.  Based on the defendant’s remarks made in his video recorded interviews, and the fact that the bike’s ignition had been modified and a key was not needed to start the engine, he must have believed it to be stolen property when he received it.  They also say that the defendant was dishonest when he received the bike since he believed that it was stolen.

THE DEFENDANT’S CASE

4.  It is the defendant’s case that, on the day of the accident, he had run into the owner of the bike with whom he had previous dealings as a motor vehicle parts trader.  The defendant was interested in the bike’s engine and possibly other parts and so arranged to view the bike later on.

5.  The defendant met up with the owner, as he believed, later on in the day.  When there, he took over the bike, whose engine was already running, and took it for a test drive to see if the engine was sound.  There was a spare helmet and so his lady friend also went along.

6.  Not even 2 minutes into the drive and no more than 200 meters away from the starting point, he skidded and fell and injured himself.

7.  Right after the defendant had fallen, he saw the owner of the bike turned and walked quickly away instead of coming over to help him.  That was the time when the defendant believed that the bike might have been stolen property.

8.  Nevertheless, despite this belief, the defendant asked passersby to call the police.  The ambulance came and took him and his girlfriend to the hospital.  The defendant suffered bone fractures but managed a full recovery.

9.  It is the defendant’s case that he had not received the motorbike in the legal sense since he had not made up his mind to buy the engine of the bike or not when he took over the bike for a test run.  He had physical possession of the bike but no control over it, and as such he was not in legal possession of the bike.

10.  If he did receive the bike in the legal sense, the defendant maintains that he did not know or believe the bike to be stolen property when he took it over for the test run.  He did have a suspicion but no more than that.  His suspicion was confirmed only after he had fallen and saw the owner walked quickly away.  As such, even if that confirmation could be regarded as a belief in the bike being stolen property, it came into existence only after the receiving.

11.  Lastly, it is the defendant’s case that he was never dishonest in his dealings with the owner and over the bike.  He did not know nor believe it was stolen property, he was going to test drive to see if the engine was worth buying and only after the test run was he going to negotiate the price and make further inquiries with the owner, which would have included asking to see the vehicle registration document that would prove ownership.

ISSUES

12.  If what the defendant says is true, or may be true, about his intention of taking the bike for a test run, he might not have been in legal possession of the bike as required as an element under the charge.  The first issue is, therefore, whether the defendant did receive the bike when he took it over for the drive.

13.  If what the defendant says is true, or may be true, about his suspicion of the bike being stolen, the issue is whether that would be sufficient to allow the court to make a finding that the defendant had believed that the bike was stolen at the time of receiving the bike.

14.  Lastly, if what the defendant says is true, or maybe true, about his intention to do the test run first and then inquire about proper ownership, would the defendant had been dishonest in his receiving.

DEALING WITH THE ISSUES

Summarizing the evidence of the prosecution witnesses

15.  The prosecution called 3 witnesses.

16.  PW1 Ms Lai was the owner of the stolen motorbike, which was bought in January 2014 as a brand new vehicle for close to $50,000.

17.  The bike was stolen in early June 2017.  It was later recovered by the police and Ms Lai went to the vehicle pound on 27 July 2017 to view her vehicle.

18.  She found that there had been some modifications to her motorcycle, being a fuse box and an ignition switch which was not there before.

19.  Ms Lai confirmed that when she had the bike, a key was needed to start it and she had not lost that key despite the bike having been stolen.

20.  In cross-examination, Ms Lai confirmed that all the wires that can be seen in photo 9, including the red wires, were normally kept inside the compartment and when she operated the bike this part would be shut and all the wires concealed.

21.  PW2 Officer Cheung attended the traffic accident on 23 June 2017.  He examined the vehicle when he was there and found that there was no key in the ignition switch.  The engine was not running at that time.

22.  He saw the defendant at scene.  To the best of the officer’s knowledge, the defendant was not in possession of the key of the bike at that time.  Officer Cheung was not cross-examined.

23.  The last prosecution witness, PW3 DPC4012 Mr Ng was involved in the investigation of theft or handling of the stolen motorcycle.

24.  When the vehicle was found, it had a registration plate number of LG3772.  Upon investigation, the proper original registration plate number should be MG615.

25.  Officer Ng confirmed that some modifications were discovered on the bike.

26.  He referred to the opened glove compartment of the bike, where there is a switch and a wire exposed.  It is Officer Ng’s evidence that this switch bypassed the ignition system of the bike so that the bike can be switched on and off without the use of an ignition key.

27.  In cross-examination, Officer Ng confirmed that photo 8 is the view of the compartment closed and that when closed, one cannot see the switch and anything behind it.

28.  At the end of the prosecution case, the defendant submitted that there is no case to answer. I ruled that there was.

THE DEFENDANT’S EVIDENCE

29.  The defendant fully understood his right to remain silent and elected to give evidence in his own defence.

30.  In relation to the present case which took place on 23 June 2017, the defendant was interviewed by the police under caution.  The defendant adopted what he had said in those interviews as part of his evidence and confirmed that the contents are true and accurate.

31.  It is admitted fact that the defendant had also said under caution at scene the following: “Ah sir, this motorcycle was lent by Yan Chai to me for a trial”.

32.  The defendant is 51 and was born in Hong Kong.  He was educated here until Form 5.  He is married and his wife is a Filipino lady.  The defendant has, from this wife, 7 children.  He is a Hong Kong resident and stays mainly in Hong Kong, with residences in the Philippines as well since 15 to 20 years ago.

33.  In a typical year, he would spend some time in Hong Kong and some in the Philippines, but because of this case, he had not been able to leave Hong Kong for some time now.  The defendant’s wife and children are in the Philippines for the summer.

34.  The defendant deals in second-hand parts of mostly vehicle parts, and sometimes scrap metal.  From motor vehicles, he would find good parts to sell, otherwise they would be sold as scrap.  He would purchase parts from all over Hong Kong and sell them in Hong Kong.  Sometimes, after reconditioning and repair, he would sell them to the Philippines and sometimes to Pakistanis in Hong Kong.

35.  The defendant said others call them the scrap people.  They would rent a cheap place to place the containers and start their business, which they conduct over the phone, filling up the containers as they go.

36.  Defence witness Mr Ng Wai Chung was the person who leased the land to the defendant in 2016 or 2017, and that was where the defendant had placed his container.  Mr Ng gave evidence later on and confirmed that he had leased out the land to the defendant in 2016 at $3,000 per month and for a period of about half a year to one year.  Mr Ng had visited his land during the lease period and had seen the defendant working with vehicle parts there, using the two containers that Mr Ng had included in the lease.  The prosecution did not cross-examine Mr Ng.

37.  The gist of the defendant’s evidence confirmed his story given in his video recorded interviews.

FINDINGS

38.  Having heard from the defendant in the witness box, I find that he is an honest and reliable witness.  I accept the defendant’s evidence as true.

39.  I find defence witness Mr Ng Wai Chung an honest, reliable and independent witness and I accept that he did lease out the land and containers to the defendant and that he had visited the land and saw the defendant working on vehicle parts.

40.  It is not disputed by the prosecution that the defendant was involved in the crash of the bike.  The defendant had stayed behind after the accident.  It would not have been impossible for him to flee, which is something that a person who knows or believes he had just crashed a stolen motorbike would likely have chosen to do.

41.  Yet, not only did the defendant not try to flee, his evidence is that he had asked someone nearby to call the police for him.  This course of action supports his claim that he only formed the belief that the bike might have been stolen property after he had fallen and saw Ah Yen turned and walked briskly away.

42.  There is no prosecution evidence to dispute the defendant’s claim that he is someone who trades in motor parts, cars, lorries and other vehicles.  In fact, the prosecution relied on this claim made in his video recorded interview as well as in court to ask the court to find that the defendant must have known that the bike’s ignition system had been tampered with in such a way that it was obvious to him as a parts dealer that the bike was stolen property.

43.  Yet, if one accepts that the defendant was a parts dealer, then it is equally possible that he was there to check out the engine before deciding whether to make a purchase or not.  If that is true, or maybe true, then the defendant might not have had received the bike when he took over to ride it.

44.  The defendant did admit that he had his suspicions about the bike even before the crash had happened.  Suspicion, however, does not equal belief.

45.  The suspicion only morphed into a belief right after the crash.  Instead of coming over to help, Ah Yen walked away at a fast pace upon seeing the defendant crashed.  The defendant explained his thinking well in his interview and in court and one would have to agree with his thinking process, which is not fundamentally improbable.

46.  I find that the defendant may in fact be telling the truth about him just testing out the bike at the time of taking over the bike from Ah Yen.

47.  I also find that the defendant’s explanation about how he did not notice the presence or absence of a key on the bike is not fundamentally improbable, since he said that Ah Yen already had the bike running when the defendant approached the bike.

48.  If one looks at the interview on its own, the defendant’s explanation of the so called girlfriend as someone whom he had met only shortly and did not know the name of can be suspicious.  The defendant, however, elaborated on that in his evidence in court and explained that he was not entirely forthcoming in his interview towards the police about the girlfriend was because he is a married man and the woman was not his wife.  I find that it may very well be the truth and what he said in the interview about the lady friend does not take away from the defendant’s overall credibility on the important issue of his state of mind when he took over the bike. 

49.  I find that it is a fact that the defendant had been running a second hand motor vehicle parts trading business as at the time of the incident and that the following facts are true.

50.  On 23 June 2017, the defendant saw a man known as Ah Yen, with whom he had previous business dealings, with a motorcycle while in Jordan.  The defendant expressed some interest in the bike and Ah Yen suggested that it was for sale.

51.  The defendant told Ah Yen that he will go find him.  They knew how to find each other because of their past dealings.

52.  The defendant, together with a lady friend, went up to a petrol station in Lam Tei in the New Territories in the afternoon.  When he arrived, the defendant saw Ah Yen standing there with the bike.

53.  The defendant was interested in buying the engine of the bike as a part and so he decided to take it for a test drive to see how it performed.

54.  He got on to the bike with the female friend after putting on their helmets and drove off.  The engine had already been started at that time, and so the defendant did not pay attention to whether the bike needed a key to start or not.

55.  The defendant crashed after riding for about 1 odd minute and about 200 meters from the petrol station.

56.  After the defendant had fallen, he saw Ah Yen left the scene at a fast pace, which caused the defendant to immediately think that the bike that Ah Yen was offering to sell could be stolen property.

57.  The defendant himself did not call the police, but he did ask those nearby to call on his behalf.  Police came and the defendant was taken to the hospital.  The defendant suffered bone fractures and required surgery.

DECIDING THE ISSUES

58.  It is for the prosecution to prove beyond reasonable doubt that the defendant had dishonestly received the bike while knowing or believing that it was stolen property.

59.  Although it is not disputed that the defendant did have physical possession of the bike when he took it over from Ah Yen, given the fact as I found them to be, I find that the bike was still under the control of Ah Yen and that the defendant was, therefore, not in legal possession of the bike.

60.  The element of “receiving” in a charge of handling is dealt with as follows in Archbold Hong Kong:-

“It does not constitute receiving where the defendant has the relevant state of mind and was in transitory physical possession of the stolen goods but the goods were under the control of another: HKSAR v Ho Wai Lun [2001] 2 HKLRD 431” - Archbold Hong Kong 2019, paragraph 22-252, at page 1591.

61.  In the cited case of HKSAR v Ho Wai Lun, HCMA 415 of 2001, the appellant was found in physical possession of a bicycle.  He had borrowed the bicycle from someone, knowing that the person had stolen it earlier.  The appellant had had it for a few days when he was apprehended.  He was told by the thief that he was free to use it in any manner he wished and to take it wherever he wished.  He was, however, required to return it to the thief at some undetermined day in the future.

62.  The appellant argued that, since he had to return the bicycle eventually, he did not have sufficient possession and control over the bicycle for him to be regarded as having received the bicycle.

63.  The appellant was convicted at trial.  On appeal, Gall J accepted the general principle on receiving in a charge of handling that it is necessary for the prosecution to prove that the defendant had control over the goods being received, but found that the manner that the appellant was allowed the use of the bicycle amounted to sufficient control over the bicycle by the appellant to satisfy the element of receiving in the charge and dismissed the appeal.

64.  The facts are rather different in our present case.

65.  Based on my finding that the defendant was only considering buying the engine of the bike subject to how the engine ran, the price and the checking of ownership papers, it must be the case that the defendant did not have sufficient control, despite being in physical possession of the bike, to amount to having received the bike under the law of handling.

66.  As for the element of whether the defendant believed that the bike was stolen when he took over the bike from Ah Yen, on the basis that I find that he is telling the truth when he said that it was his intention to test out the engine first and if he found it acceptable, and that he will then proceed to negotiate the price and check the documentation of ownership for the bike, it must also be my finding that the defendant had not formed the belief that the bike was stolen at the time of taking over the bike from Ah Yen.

67.  He had a mere suspicion, which can either be confirmed or dispelled upon his checking of the ownership papers after the test run and after he decided to make the purchase.

68.  The defendant’s alleged chosen course of action is not inherently improbable, and I find that it is indeed the course that a seasoned car parts dealer would take.

69.  There would have been no point to check the ownership documents if the test run revealed the engine as not worth buying.

70.  There was nothing to stop the defendant from walking away, had he not crashed the bike, after the test run.  He was under no obligation to buy and there is no evidence to suggest that he had already agreed to make the purchase.

71.  The defendant’s admitted belief of the bike being stolen was formed after he had crashed and saw Ah Yen walking away from his crash at a fast pace. On the factual basis that the defendant had not yet agreed to buy the engine, or the bike, the defendant’s holding of that belief at that point in time is irrelevant as to whether the defendant had committed the offence or not.

72.  Lastly, since I have found that the defendant was merely testing out the engine when he took over the bike, despite whatever suspicion he might have at that stage, he knew that if he chose to buy the bike he will check the ownership document, I must also find that the defendant was not dishonest when he took over the bike, or at any other time thereafter.

73.  For the reasons given, I find the defendant not guilty as charged.