HKSAR v. HOLINYAK VITALIY

DCCC 122/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 122 OF 2017

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REASONS FOR VERDICT

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1.  The defendant D1 was charged for one count of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.

The prosecution case

2.  On the late night of 6 and early morning of 7 November 2016, D2 committed burglary with others at Room C10 and Room C8 on the 9^th floor of How Ming Factory Building and stolen the following items thereat:-

Room C10

(a) about 49 pairs of eyeglasses;

(b) about 66 pairs of sunglasses;

(c) about 46 glasses boxes;

(d) 4 display boxes; and

(e) one notebook computer.

Room C8

(a) A silver-coloured foldable bicycle; and

(b) 3 carton boxes containing household items.

3.  Right after the burglary, the abovementioned stolen goods were conveyed to D1’s studio for storage until they were seized by the police on 16 November 2016.

4.  D1 has recent possession of the abovementioned stolen goods and he knew or believed them to be stolen. 

The defence case

5.  D2 was the brother of a female friend of D1.  Upon D2’s request, D1 provided temporary storage for D2’s goods and chattels.

6.  After the things were moved into D1’s studio.  D2 offered to sell D1 some of the eyeglasses, and D1 paid D2 $3,000 for a few pair of eyeglasses.  D1 did not know nor believed the things were stolen goods.  

Issues in dispute

7.  It is admitted that D2 had committed a burglary at C10 and C8 between the late night of 6^th and early morning of 7 November 2016 and stolen items of goods as described in the particulars of charge one.  It was the defence case that some of the spectacles seized belonged to the defendant, the defence required the prosecution to prove the optical goods seized at the defendant’s premises were those stolen by D2 at C10. 

8.  The defendant spoke Ukraine and Russian and he was not able to communicate proficiently in English.  The defence said that during the cautioned interview there were certain matters the defendant failed to express accurately.  It was the prosecution case that the defendant could express clearly in English and his admission during the interview strengthen the inference that he knew or believe the goods moved into his premises were stolen goods.  The defence on the other hand said the defendant provided a valid explanation for the receiving of the goods.  What consideration should be given to the defendant’s admission under caution?

9.  Further, the defence submitted there was a defect in the particulars of the charge, ie the defendant received the stolen goods on 16 November 2016 when the evidence showed that the stolen goods were moved into the defendant’s premises and received by him on 7 November 2016, the prosecution replied that was only a technical defect, if any, could be remedied by amended the particulars to “on or about 16 November 2016”.  In response the defence drew my attention to the merit of the case, and submitted that the actus rea and the mens rea of the defendant must coincide with each other.  Did the defendant know or believe any of the things moved into his premises was stolen goods?  Was the defendant acting dishonestly at the material times?

Background

10.  Room C10 and Room C8 on the 9^th floor of How Ming Factory Building were burgled and a number of items as per admitted facts were being stolen thereat (Exhibit P1).

11.  Room C10 was the office and show room of PW1.  PW1 had around 800 pairs of spectacles and other optical accessories kept inside Room C10 before he left the premises sometime after 11:00 pm.  On return around noon time on the next day, he found Room C10 been burgled and a number of items as per admitted facts were being stolen thereat.

Finding

12.  I have reminded myself of the burden and standard of proof.  It is for the prosecution to prove the defendant’s guilt on each and every element of the charge beyond all reasonable doubt.  The defendant has no burden of proof whatsoever.  The defendant had a clear record, it is less likely that he would commit a crime and more likely that he was telling the truth during the cautioned interview.  All the evidence should be considered as a whole in the light of the defence case and the defence submission.  Where there is any reasonable doubt, the benefit should go to the defendant.

13.  The defendant elected not to give evidence but he provided an explanation on 17 November 2016 during a video recorded interview for the possession of the items moved into his premises by D2 during the early hours on 7 November 2016.  As English was the defendant’s second language where the answers provided by the defendant in the interview capable to different interpretation, the most favourable one would be taken.  A brief summary of his explanation in the first interview being:-

(i) D2 was the brother of his friend Anna. About two months ago D2 said he was moving out from his office in Kwun Tong and wanted to leave some of his luggage in his studio in Garley Building and at the same time brought in somethings useful to the defendant for free [Counters 242 - 281]. He was busy in settling his company, he was inside the premises with his assistant, no advance notice was given before D2, Anna and others arrived with the luggage downstairs. He allowed they moved the things into his premises [Counters 334, 422, 630 -761]. They said they would pick up the things later and some of the things were taken away in the same evening. [Counters 1246]

(ii) In the beginning of last week, D2 moved in the luggage, from the luggage he saw some glasses in black boxes (referring to the display boxes) and D2 proposed to sell glasses inside the boxes. The defendant said he ordered glasses from China before. [Counters 284 - 302]

(iii) He just allowed D2 to leave his things in his place and use the opportunity to buy things offered by a friend. Just like one buy from a peddler on the street, he did not commit any crime. [Counters 593 - 595]

(iv) D2 said these were confiscated goods. He inspected and found the glasses were in very good quality and he needed glasses in that moment, so he agreed to buy the glasses offered to him for $3,000. He gave some monies to D2 and said some would be given later [Counters 316 - 320, 325 - 329]. He just bought the glasses in the black (display) boxes for $3,000, but the glasses now in the black boxes no longer the same before, because he has re-organized the glasses. [Counters 855 - 871]

(v) The slivery display box with glasses inside was brought in and left in his premises by D2 a few days after they moved in the luggage. But he did not remember what glasses was inside when the box first presented to him [Counters 549 - 587]

(vi) The spectacle cases found inside a paper bag first came in the suitcase, he did not know who put them in the paper bag. He re-organized the things inside the premises and placed the paper bag with spectacle cases in the balcony [Counters 1167 - 1194]

(vii) The glasses inside the display boxes were all re-organised by him and he did not remember what was the original position [Counters 306 - 311]. He did not buy the 10 pairs (Exhibit 20) now inside the display box (Exhibit P19), he bought the brand “Jeans Club” which was in the box before [Counters 883 - 891, 963]. The pair of Calvin Klein (Exhibit P22(4)) now inside the display box (Exhibit P21) was his personal property brought in Europe, for the remaining 5 pairs Ray Bans, if they were inside the box before, they were purchased by him from D2. The display boxes with glasses were offered to him and he bought three boxes and the glasses therein for $3,000 [Counters 903 - 950]. Some glasses now in the boxes were not there before, while some were there before. He could not remember which glasses exactly bought by him now. He had 20 pair glasses of his own in that premises. [Counters 954 - 959]

(viii) He moved in a box of delivery before but he did not open that box. [Counters 1622 - 1655]. So for the other glasses that was packed in paper boxes, he thought those were order of his. And his order and boxes moved in by D2 were mixed together. White Calvin Klein and Nike glasses were packed in paper boxes similar to his order unpacked by his assistant at the time D2 and the others moved their items inside his premises. [Counters 323 - 324, 330 - 422]. He was not involved in the unpacking [Counters 1660 - 1661].

(ix) He has been organising the glasses the day before the house search, and he could not distinguish his order from the glasses brought in by D2. He did not make any record of the glasses [Counters 427 - 543]. It was messy and one week has passed since the things moved in by D2 so he started organizing the things. His glasses and glasses brought in by D2 were all mixed together [Counters 874 - 877].

(x) The paper boxes used to pack the glasses had been thrown away [Counters 1056 - 1059]. D2 did return to take away some of the glasses he moved in. He did not make a record how many pair of glasses D2 took away and he did not ask to where D2 took the glasses [Counters 1542 - 1559].

(xi) The defendant was asked why he mixed the glasses together, he then gave a long response repeating he has mixed up the glasses and then said he would choose a pair of glasses to mix the clothing but the glasses could be the one he bought 2 years ago at Counter 1010. Then an even longer yet equivocal clarification as to what his understanding of the source of the glasses that D2 moved into his premises [Counters 1013 - 1054].

(xii) D2 asked for permission to move in his things, the bicycle found in the balcony was among the things he moved in, so it should be belonged to D2 [Counters 1150 - 1163]. The bicycle was contained inside a bag designed for its easy carriage but he did not know where the bag gone [Counters 1251 - 1290].

(xiii) Finally, the defendant said he only mixed together his glasses with D2’s glasses one week after they moved in the things, to put thing in a neat and tidy manner. Glasses were supposed to be with the glasses, the glasses would be used as accessories for his photographic model [Counters 1665 - 1696].

14.  The defendant further verify matter related to the glasses in the second interview:-

(i) D2 only proposed to sell glasses inside the boxes to him, for the Calvin Klein and Nike sunglasses which were placed inside paper boxes, D2 did not talked about these. Therefore, he thought that was his order [Counters 569 - 583].

(ii) For the two boxes (referring to Calvin Klein and Nike sunglasses) he thought contained his glasses ordered by his assistant, he did not communicate with his assistant about the matter [Counters 698 - 720].

(iii) He arranged the glasses the night before because they were of different style, he arranged the glasses for his collection, for the photographic model to pick the good match [Counters 612 - 626].

(iv) When being reminded not all the glasses belonged to him, again he gave a long answer that D2 kept these glasses in his place and he was not interest in these glasses but not responding to the point [Counters 629 - 636]. Then he said most of D2’s glasses that he did not buy were placed in the balcony [Counters 647], he organised the glasses in the balcony also, because he would buy them too [Counters 679 - 686].

15.  That D2 together with others committed a burglary was not in dispute.  Soon after the burglary, the group hired PW2 to convey a number of luggage packed in boxes, nylon bags, suitcases together with other household items to the defendant’s premises.  PW2 had an impression that the group was moving house.  PW2 helped to unload the goods quickly to avoid any obstruction caused to other road user. 

16.  According to evidence of the two co-tenants who signed the lease of the premises, the defendant planned to carry out his fashion design and beauty consultant business in the premises, if so that he and his assistant remained in the premises in early hours in the morning on 7 November 2016 was understandable.

17.  According to the second set of admitted fact (Exhibit P2), in October 2016 D2 asked PW9 for permission to use his vacant office in How Ming Factory Building.  According to the defendant’s explanation on 17 November, D2 first approach him two months ago, that would be sometime in September, if so that would be around the same time D2 asked PW9 for use of his office.  This would be consistent to the scenario that D2 asked around and eventually moved into PW9’s premises and did not follow up the matter with the defendant again.

18.  However, D2 was forced to move out from PW9’s premises around the midnight of 6/7 November 2016.  D2 simply had no time to give advance notice.  Though the defendant had indicated his consent earlier, how D2 could ensure he would be allowed entry.  The defendant liked glasses and was ordering glasses for his collection, the burglary of the optical company committed by D2 probably was not a mere coincidence, but to secure his entry into the defendant’s premises. 

19.  According to the explanation given by the defendant, it happened that at the material time he and his assistant were inside the studio.  Upon seeing the friend had moved out from his premises and arrived downstairs with the luggage, the defendant allowed the goods moved in.  This was consistent to the observation of PW2 that the group was moving home.

20.  PW1 confirmed that there was no unique marking on his optical goods and their packing, similar items were sold around optical shops in Hong Kong and aboard.  PW1 gave evidence that the out-factory price of the glasses was between ¥280 and ¥6. There was no evidence that the defendant was aware of the burglary at Room C10 and Room C8.  He was told of the burglary after the police entered his premises with the search warrant.  The answers in his first interview suggested the defendant had already provided particulars of D2 and his co-tenant who was then in Hong Kong to the Police.    

21.  It is true, however, as stated in the prosecution’s opening, certain admissions of fact the defendant made in his interviews were very suspicious.  In particular, he admitted he only brought glasses that contained inside the black display boxes but he mixed all the glasses together and said he was not able to distinguish which was which.  Should any glasses in fact ordered by him or by his assistant, he should have ascertained his order by the time he organised the glasses.  If he could identify the pair of Calvin Klein (Exhibit P22(4)) out of that lot of sunglasses, why he would have failed to identify the glasses he bought from D2 as he alleged.  All these suggested the defendant was trying to distance himself from the glasses found inside his premises.  Why did he do so?  

22.  Further, according to the defendant’s admission, he liked glasses and he made order of glasses from Mainland before, if so he should be able to differentiate good from bad and the price of the commodity.  The way he explained how he understood confiscated goods, suggested that he did not make any further enquiry when he decided to buy some of the glasses at extreme good bargain after he was told these were confiscated goods but was not provided with any proof.  These would have caused the prosecution in thinking the evidence was stronger than it was.  But simply turning blind eye to suspicious circumstances does not amount to knowledge or belief.

23.  The glasses which PW1 identified to be his were found placed inside the defendant’s studio in an orderly manner without any concealment.  Also, the stolen bicycle was placed at the balcony without covering.  It may be better for him to ask for proof of the source of the glasses and D2’s permission before he arranged and borrowed the glasses to match his collection, yet in my view guilty knowledge or belief was not the only irresistible inference in this case.  As mentioned above, the defendant was told of the burglary by the police at time of the house search, this might be the reason why he wanted to distance himself from the glasses.

24.  The technical point raised by the defence was not unamendable, this does not have bearing in this case.  I considered and find there is a doubt in the prosecution case on the merit and the defendant is acquitted accordingly.