HKSAR v. AMARSANAA, BATSAIKHAN

HCMA 192/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 192 OF 2016

(ON APPEAL FROM KCCC 239 OF 2016)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted after trial on one charge of theft contrary to section 9 of the Theft Ordinance, Cap 210. He was sentenced to 12 months’ imprisonment and now appeals against his conviction.

2.  At the hearing of the appeal I dismissed his appeal.  Below are my reasons. 

The prosecution case

3.  The prosecution case is an allegation against the appellant of theft by pick pocketing.  It is alleged that on 16 January 2016, the appellant stole one LG-G3 mobile phone (“the mobile phone”) from the victim’s (“PW1”) handbag on Hart Avenue, Tsim Sha Tsui.

4.  At about 11.15 pm on 16 January 2016, PW1 was walking along Hart Avenue whilst her friend, PW2 ( a male) was ahead of her. At the time, PW1 had her leather-flapped handbag across her shoulder, on her back.  As depicted from the photographs[1] the main compartment of the handbag was closed by a large fold-over flap from the back face to the front face of the handbag.  She suddenly felt that the weight of the handbag was reduced and its flap, which lightly touched her back, was opened.

5.  She thus immediately turned around and saw the appellant, who was a few feet away from her, holding her mobile phone in his right hand. The victim then shouted at the appellant.  After dropping the mobile phone, the appellant walked away. 

6.  After picking up her mobile phone, PW1 intercepted the appellant with the assistance of PW2.  A report was made and the police arrived at the location after about 10 minutes. At about 11.45 pm, the appellant was arrested by a police officer.

The defence case

7.  The appellant testified and called no further witnesses.  Essentially, it was the appellant’s case that he did not steal the mobile phone from PW1’s handbag but found it on the ground.

8.  The appellant gave evidence that at the material time, he was bumped by an unknown male pedestrian.  He said the bump threw him off balance which caused his hand to hit the ground.  At that moment he noticed a mobile phone on the ground which he believed had been dropped by the male that had bumped into him. As he thought that the mobile phone belonged to that man he picked it up and shouted “Oy” in an attempt to alert the man.

9.  However PW1 suddenly appeared and shouted at him, he placed the mobile phone down onto the ground again.  Due to the language barrier as the appellant is Mongolian, and PW1 and PW2 are Chinese, he could not effectively communicate with them.  He had tried to explain that he was on his way to meet his friend nearby by showing a photo to PW1 and PW2. 

10.  Although the appellant could not speak Chinese, he understood the term police so he waited at the scene for them to arrive to resolve the matter.  The police subsequently arrived and the appellant was arrested.

Magistrate’s findings

11.  In his statement of findings, the magistrate[2] found both PW1 and PW2 to be honest and reliable witnesses[3].  Further, he rejected the evidence of the appellant noting that on close scrutiny of the appellant’s testimony and demeanour, the appellant did not impress on the magistrate that he was an honest and reliable witness.

12.  He found the appellant’s assertions unbelievable and plainly incredible and had no doubt that the appellant did pick pocket the mobile phone from PW1 and tried to dispose it by dropping it onto the ground when PW1 shouted at him.  The magistrate found that this act was without doubt dishonest[4].

13.  The magistrate found that the incident took place as described by PW1 and PW2.  That is, after feeling a reduced weight, PW1 immediately turned around and found the appellant was holding her mobile phone.  Given the proximity in time, location and all the circumstances, the only reasonable irresistible inference was that the appellant was the one who took the mobile phone from PW1’s handbag. 

14.  The magistrate rejected the submission that the appellant not fleeing the scene was consistent with his claim of innocence and that this did nothing to cast any doubt on the prosecution case[5].

15.  In reaching his verdict, the magistrate made it clear that the burden was upon the prosecution to prove the guilt of the appellant whilst the appellant was under no burden to prove his innocence.  Consequently, he was satisfied beyond reasonable doubt that the prosecution proved all the ingredients of the offence and accordingly the appellant was convicted as charged.

Grounds of appeal

16.  There are two grounds of appeal.  They are: -

(1) in the absence of any direct evidence of the theft, that being the removal of the mobile phone from the bag, the learned magistrate fell into error in finding that it was the appellant who removed the mobile phone from PW1’s bag; and

(2) (Alternative to (1)) the learned magistrate’s failure to properly weigh all of the evidence resulted in him finding that the Prosecution had proved it case beyond reasonable doubt.

17.  Mr James Sherry counsel for the appellant (who was also counsel at the trial) submits that the accumulative basis of both the grounds of appeal are that there was insufficient evidence to enable the learned magistrate to draw the inference that it was the appellant who took the mobile phone from PW1’s hand bag. 

Discussion

18.  The crux of the appellant’s grounds of appeal is that the magistrate was wrong to draw an irresistible inference on the evidence that was before him. 

19.  The principal issue at trial was the credibility of the prosecution witnesses and the appellant. 

20.  If the prosecution witnesses were to be believed, and the evidence of the appellant was to be rejected, then all that was left to be decided was if there was sufficient evidence for the magistrate to draw an irresistible inference against the appellant.

Credibility

21.  Mr Sherry made it clear in his submissions that that there is no issue taken with the magistrates finding on credibility. 

22.  On the issue of credibility, the magistrate was entitled to come to the conclusion that he did and there is no reason to depart from the magistrate’s assessment of credibility. 

Irresistible inference

23.  The central issue for consideration is if there was sufficient evidence for the magistrate to draw the irresistible inference that he did. 

24.  Despite the fact that PW1 and PW2 were found to be credible witnesses, Mr Sherry contended that there was insufficient evidence for the magistrate to have drawn the inference when an inference could have been drawn that the phone was removed by some other person or by some other means.  Viewing the totality of the evidence there was insufficient evidence to show that it was the appellant who removed the phone. 

25.  Further, he submitted there was no evidence to indicate that the appellant was even close enough to remove the mobile phone from the bag, no evidence that either PW1 or PW2 saw the appellant remove the mobile phone and no evidence to suggest that he even had his hands inside the bag. 

26.  This issue turns on consideration of the circumstantial evidence and the totality of the evidence viewed as a whole.  There is no direct evidence of PW1 or PW2 seeing the appellant’s hands inside the handbag or him removing the mobile phone from it.  As there is an absence of this evidence was the magistrate correct in drawing an irresistible inference from his finding of the proven facts. 

27.  Mr Vincent Lee public prosecutor for the respondent relied upon the case of HKSAR v Au Hau-ching CACC 146/2008 quoting Wright J (giving the judgment of the Court) at paras 17 and 18:-

“Judges are urged too often on behalf of an accused person to consider the different facets of evidence in isolation one from the other; this is an unrealistic approach for it is the duty of the judge to determine whether the prosecution has discharged the onus on it, to the requisite standard, on the totality of the evidence before him.

We adopt what was said by McHugh J in the decision of the High Court of Australia in Shepherd v R [1990] 170 CLR 592:

...The cogency of the inference of guilty is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.”

28.  The significance of this approach was not lost by the magistrate who made it very clear in his findings that he gave consideration to this[6].

29.  In the present case the magistrate took into account the appearance of the handbag and was entitled to rule that the mobile phone would not have accidentally fallen out without someone taking it out.

30.  The magistrate took into account the facts that it was only after PW1 felt the weight of handbag was reduced and seeing that the flap was open she turned around immediately and saw the appellant holding her mobile phone.  He properly considered the circumstances of the close proximity of time, place and distance between PW1 noticing that her bag was lighter in weight and her immediately turning around and seeing the appellant close to her holding her mobile phone in his hand and collectively with the flap of her bag which was open. 

31.  On all the evidence before him, the magistrate was entirely correct to draw on the cumulative weight of circumstances the only irresistible inference that he did that the appellant did take the mobile phone from her handbag.  

32.  As far as the rhetorical questions[7] asked by the magistrate in his evaluation of the appellant’s evidence, they were matters which the magistrate properly took into consideration.  Upon doing so, he provided cogent reasons for rejecting the evidence of the appellant. 

Was sufficient weight given to the fact the appellant did not flee?

33.  Mr Sherry repeated his submissions that he made to the magistrate at the trial that as the appellant did not try to flee the scene, this was an act consistent with his claim of innocence.  He submitted that there was insufficient weight given to the fact that the appellant did not flee the scene but rather chose to wait until the police arrived and this act was indicative of innocence.  Reliance by Mr Sherry was placed on HKSAR v Gregory Jamie McKay HCMA 645/2014 in support of this argument. 

34.  With respect, this case provides no assistance to the appellant’s case. In McKay the appellant pleaded guilty to an offence of theft of cash from a sex worker after he had paid her for her services to him.  The female victim stopped the appellant from leaving after she had discovered the theft. The Court said at paragraph 14 :

“..... But I do see that little weight has been placed on the fact that the Appellant did stay behind to wait for the police, which having looked at his body built, there is no doubt he could have forced his way out had he minded to do so, which shows there is some remorse in the matter.”

35.  The magistrate rejected the submission by Mr Sherry that the appellant’s remaining at the scene and making no attempt to flee after he was intercepted by PW1 and PW2 was consistent with his claim of innocence.  The magistrate’s reasons for doing so was that the reaction of offenders varies.  There is no flaw in his reasoning. As is demonstrated by McKay despite the appellant’s commission of the offence and subsequent plea of guilty to the charge, he remained at the scene of the crime. 

36.  I find that there are no merits in this appeal.  

Conclusion

37.  Having considered the totality of the evidence and its cumulative weight the magistrate drew the only reasonable irresistible inference to be drawn from the facts that the appellant had stolen the phone by pick pocketing it from PW1’s handbag. 

38.  I find that the conviction is neither unsafe nor unsatisfactory.  I therefore dismissed the appeal.