HKSAR v. HARPAL, SINGH

HCMA 211/2022

[2022] HKCFI 3678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 211 OF 2022

(ON APPEAL FROM WKCC 45/2022)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  This is an appeal by the appellant against his conviction by a deputy magistrate, Mr Lau Hon Wang, Kenny.

2.  The appellant was convicted after trial of theft from a vehicle, contrary to section 9 of the Theft Ordinance, Cap 210.

The prosecution’s case

3.  The prosecution case was that on 30 December 2021, PW1, the victim was asleep in his vehicle in the driver seat parked outside 496 Shanghai Street, Mongkok at about 8 AM when he was woken up by a loud noise and saw a man later known as the defendant standing outside his vehicle by the passenger door holding his wallet and 2 mobile phones which he had left on the front passenger seat next to him.

4.  PW1 got out of his car and the defendant fled.  PW1 chased him but failed to catch him.  He made a report to the police.  There was CCTV footage of the theft captured on film.  The footage was not challenged by the parties.  It showed a male approach the victim’s car twice before putting his right hand through the front passenger window and taking something from within the car before leaving immediately.  There is footage of the victim getting out of his car and chasing a man.

5.  The defendant was arrested 3 days later on 2 January 2022 in the same area because he appeared to be similar to the CCTV image that captured the thief.  The defendant was arrested and cautioned with the assistance of interpreters. He admitted stealing the wallet, its contents and 2 mobile phones out of greed.  The admissibility of this statement made under caution was challenged.

6.  The defendant gave another statement under caution the following day, 3 January 2022 and stated under caution that he had been assaulted by the police and his admissions made the day before were not voluntary.

Admitted facts

7.  It was admitted that the defendant was arrested at 5:05 PM on 2 January 2022 at 279 reclamation Street.  It was admitted that there was CCTV footage of the scene and the theft as well as a screenshot from a carcam which was produced as evidence.  It was also admitted that the victim, PW1, had 2 mobile phones, a wallet containing $2000 cash, his Hong Kong identity card, an identity card of another, two ATM cards and a credit card stolen.  It was admitted that these were stolen outside 496 Shanghai Street on 30 December 2021.  A set of 16 photographs of the scene and the defendant on the day of his arrest were admitted into evidence.

Defence case

8.  The appellant elected to give evidence in both the special issue to determine the admissibility of the statement as well as in the general issue.  He did not call any defence witnesses.  It was the appellant’s case that there was a mistaken identity and that at the material time he was asleep at home.  The thief caught on camera was somebody else.

9.  In the special issue relating to the admissibility of the statement, he was taken to a toilet by a number of police officers just before the commencement of the statement and threatened as well as assaulted.  He was forced to admit the theft and if he did not the police would frame him for other crimes.

Issues at trial

10.  The issues at trial were whether the admissions in the statement were admissible and given voluntarily or whether or not they were made as a result of threats, violence and oppression as well as whether there was sufficient evidence to prove the defendant was the thief and there was no mistaken identification.

Magistrates findings

11.  In his statement of finding, the magistrate gave his reasons as follows for the first issue, the special issue.  He found the two notices to persons in custody were served properly and admissible.  He found the written statement under caution taken with assistance of two interpreters to be admissible and made voluntarily.

12.  He found material discrepancies in the defendant’s evidence.  He gave two versions of events relating to the order of threats and assaults by police officers in the toilet just before the cautioned statement commenced.  He rejected the defendant’s evidence of serious allegations against officers.  He placed no weight on the statement the defendant wanted recorded the following day that accused the police of assaulting him and forcing him to admit the theft.

13.  As far as the general issue is concerned, the magistrate found the prosecution witnesses credible and reliable.  He was satisfied that the victim gave evidence of how his items were stolen from within his car that was consistent with the CCTV footage that recorded the theft.  He was satisfied that the victim’s mistake as to the colour of the thief’s jacket in chief was not a serious discrepancy which affected his credibility and reliability.

14.  The magistrate was well aware of the dangers of a mistaken identification.  He did not find the CCTV footage of the thief was a definitive identification of the defendant.  It was not clear enough and the thief was wearing a mask as well as different clothes from the defendant when he was arrested 2 days later.

15.  He did not rely on the CCTV footage to identify the defendant as the thief.  What the magistrate did rely on was the admissions made in the cautioned interview, P7.  In that interview, the appellant admitted stealing the wallet and two phones from inside the victim’s car.  He then went on to say that he discovered the wallet had no cash so threw it in a back alley somewhere nearby.  The magistrate rejected the suggestion that the police officers coached the defendant to say this in his interview.  The magistrate also rejected the defendant’s assertion that there was no money in the wallet so he threw it away.

16.  The magistrate convicted the defendant on the basis that he made an admission of the offence and he attached full weight to that admission.  He found the prosecution had proved beyond reasonable doubt that the defendant was the thief and that the male in the CCTV footage was the defendant.  He accepted the victim’s evidence as to what was stolen that morning.  He found all the elements of the offence proved and convicted the defendant accordingly.

Grounds of appeal

17.  The appellant was not legally represented at his appeal.  He did submit a letter to the court containing his grounds of appeal.  Those grounds were as follows:

(1)  he was forced to make the admissions in his interview under caution.  The statement he made the following day refuting his admissions and alleging police threats and assaults was never presented to the court during his trial;

(2)  his lawyer failed to challenge the whereabouts of the wallet and ID card which would respectively show that the victim lied and that the appellant was not the person who stole his belongings;

(3)  the victims evidence was not believable because he had said the thief was wearing a red jacket in court but corrected himself in his evidence after viewing the CCTV footage.  The victim’s description of the appellant was very different from his real appearance;

(4)  the window on the front passenger side of the victim’s vehicle was not open wide enough for the appellant to put his hand through it to steal items from the seat;

(5)  in the magistrate’s statement of findings, he found that the person from the CCTV footage and screenshots was not the appellant therefore he should not have been convicted of theft; and

(6)  the magistrate was prejudiced by the appellant’s previous criminal records and his status in Hong Kong as an asylum seeker and Form 8 holder.

My considerations

18.  I will deal with those grounds of appeal and the respondents helpful and detailed reply.  I will add here that the appellant said during his appeal hearing that he did not write his grounds of appeal and did not know what was written in his grounds of appeal.  Nevertheless, I will deal with those grounds one by one.

19.  There is no merit in Ground 1.  Firstly, the magistrate was well aware of the statement the appellant made the following day accusing the police of assaults and threats and declaring his admissions under caution made after his arrest false and involuntary.

20.  As far as the voluntariness of his statement, P7 is concerned, I am satisfied the magistrate carefully considered the evidence, the prosecution’s burden of proof and provided cogent reasons and findings.

21.  There is no merit in Ground 2.  Where the wallet ended up and how the victim’s identification card was ultimately recovered in another unrelated case is irrelevant to the appellant’s guilt.  In any event, it was the appellant himself in P7 under caution who said that he found no money in the wallet and threw it away in an alley.  It was not evidence from the victim that he saw the appellant throw the wallet away.

22.  There is no merit in Ground 3.  The magistrate dealt properly with the discrepancies in the victim’s description of the jacket worn by the man who stole his belongings.  It was not a material discrepancy and the magistrate gave cogent reasons why he went on to accept PW1’s evidence as credible and reliable.

23.  There is no merit in Ground 4.  According to the victim, the window of the front passenger seat door was wound down about 4 inches.  There was no evidence that the appellant was unable to put his hand through it.  It was in fact the only way the items were stolen.  The door had not been opened in order to access those items.  The magistrate described how the CCTV footage showed the thief put his right hand through the gap in the window.

24.  There is no merit in Ground 5.  This ground can be ignored as the statement of findings was misunderstood on this point.  The magistrate’s view was that he did not make an identification of the defendant from the CCTV footage.

25.  There is no merit in Ground 6.  There is no evidence the magistrate was aware of the appellant’s previous criminal record or his status in Hong Kong.  The allegations against the magistrate are unfounded.  In fact, it was at this point in the appeal hearing that the appellant admitted he did not know the contents of his own grounds of appeal nor did he know if the magistrate knew before he convicted the appellant that he had so many previous convictions.

Conclusion

26.  I have reminded myself of the principles on “rehearing” in magistracy appeals.  I find no error or flaws in the magistrates reasoning or findings.  I am satisfied that the magistrate was justified in reaching his conclusion that the appellant was the thief seen in the CCTV footage stealing from the victim’s vehicle.  He thoroughly and carefully evaluated the prosecution’s evidence as well as the evidence from the appellant himself.  His analysis is sound and with proper evidential basis.  I am satisfied that the conviction was neither unsafe or unsatisfactory.

27.  For these reasons, I dismissed the appeal against conviction.