HKSAR v. THAPA MIN BAHADUR

DCCC 322/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 322 OF 2014

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REASONS FOR VERDICT

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1. The defendant pleaded not guilty to a charge of robbery. He allegedly stole a mobile phone from a 46 year-old female, Tang Hau Ling, PW1, at about 3.30 am on 2 April 2014 near the junction of Cheung Sha Wan Road and Pei Ho Street, Sham Shui Po, Kowloon, Hong Kong. The defendant was detained in an alley nearby. He maintained that he did not rob the victim and had gone into the alley to relieve himself.

Prosecution Evidence

PW1

2. PW1 is a  married lady with three grown-up children.

3. On 2 April 2014 she had finished working in a café in Sham Shui Po and was walking home along Cheung Sha Wan Road near to the Sham Shui Po MTR station. She was carrying a bag on her right shoulder and carrying her mobile phone in her left hand. The bag was shown in photograph album  P6/4. The mobile phone was shown in  P6/5 and produced as Ex P1.

4. PW1 said that at about 3.30am she was checking her mobile phone when she felt someone pulling  her right arm. PW1 said she turned and saw that a man was pulling the straps a the top of her bag. The man had a piece of cloth masking his face. PW1 said that the scarf was yellow dots on it. She said the man was about 21 or 22 word dark clothing. PW1 said that she shouted out “ Help, Robbery” about 10 times whilst struggling to keep hold of her bag.

5. PW1 said that the man then snatched her mobile phone from her left hand and fled towards the MTR station.  PW1 chased after him continuing to shout out as she did so. PW1 said she then lost sight of him. PW1 said that a woman came up to her, asked her what happened and if she had lost anything. PW1 told her what happened and she said that the woman told her the  person had been caught by her brother in a rear lane and asked her to accompany her there. PW1 said she was too frightened to follow the woman into the rear lane which was very dark. PW1 was then approached by a male passerby who rang the police. PW1 said the police arrive shortly and after telling them what happened she followed them into the rear lane and to the other side where there was more lighting. PW1 said that she saw that a man had detained the man who snatched her mobile phone. PW1 said that the police showed her a mobile phone which she identified as the one snatched from her, P1.

6. PW1 was shown exhibit P6/6, a photograph of the scarf worn by the defendant when he was arrested. PW1 said she could recognise it by the yellow dots as the scarf worn by the man who robbed her.

7. PW1 agreed she did not see the face of the man who robbed her. She said she paid attention to the dots on her scarf as she was facing him during the struggle.

PW2 Peter Chau

8. PW2 told the court that he is aged 40 and a construction site contractor.

9. PW2 said that in the early hours of the morning of 2 April 2014 he was  walking along Kwelin Street in Sham Shui Po with his sworn elder sister, Ms Li Lai Ying, PW3. PW2 said he heard a woman yelling robbery. PW2 said that he saw a man wearing a black upper garment and a scarf covering his mouth. walk past him. PW2 said he felt strange that someone would dress like that in hot weather. He said he did not notice anyone else in the vicinity. PW2 said that when the man walked past him he asked  him in Cantonese what was going on but the man ignored him. PW2 said he could still hear a woman shouting robbery and the man began to run. PW2 said he ran after the man for about 100 yards and then pushed him on the back with both hands and the man fell to the floor. PW2 said he pressed the man to the floor and man asked him in English to let his hand go. PW2 said he release the man’s hand and the man put his hand into his rear trouser pocket and took out something white and discarded it on the ground next to him. PW2 said that PW3 arrived and he told her that the man had discarded something on the ground and saw her pick up the white object. PW2 said that PW3 showed him the object which was a mobile phone. PW2 said he looked at the phone and saw it had a cracked screen. He said he noticed it was a Samsung phone. PW2 identied P1 as the mobile  phone. PW2 was shown Photograph P6/5 which he recognised as the scarf worn by the  man he had tackled to the ground. He said it had a special dotted pattern.

10. PW2 said the police took the male. He recognised him as the defendant.

11. PW2 agreed he never saw the man shouting out robbery. PW2 denied that the man he detained did not discard P1. PW2 denied that the defendant was in an back lane preparing to urinate when PW2 came up behind him.

PW3 Ms Li Lai Ying

12. PW3 is aged 52.

13. PW3 said that whilst walking along  a street in Sham Shui Po with P2 she heard a woman shouting for help. PW1 said a foreign male wearing something covering his face and wearing a hood approached from a back alley off Kweilin Street and bumped against PW2. PW2 said she went through the alley and met a woman who told her that a male had snatched her mobile phone and ran into the alley.  PW3 said that she told PW2 to catch the male and PW2 chased after him. PW3 said that a passerby called the police. PW3 said she went to see if PW2 had detained the  man and from about 25 feet saw PW2 struggling with a man on the floor near the exit of an alley. PW3 said that as she approached she saw the man discard something. PW3 said that she picked up the discarded item and found it was P1. PW3 said she showed P1 to PW2 and later gave P1 to the police. PW3 said she recognised the scarf shown in P6/5 as similar to the scarf worn by the man who had walked past her earlier with his face covered.

PW4 – The Arresting Officer

14. PW4 said he attended the scene at about 3.36 and saw PW1 to PW3 guarding the defendant who was sat on a a bench. PW4 said he noticed that there was a colourful scarf  round his neck. PW4 searched the defendant and found a pair of  black plastic gloves in his right trouser pocket, Ex 4, and he had HD1.80 in his possession

15. PW5, WPC 6893, said that she arrived at the scene with PW4. Later PW4 handed P1 to her.

Defence

16. The defendant elected to give evidence and called no witnesses. The defendant is aged 23 and lived in Nepal until he came to Hong Kong in 2005. He worked as a construction worker but has been unemployed since February 2014. He lives with his mother at Lai Chi Kok Road.

17. The defendant said that he was in the Sham Shui Po area at the time of the offence as he had been our jogging. The defendant said that whilst out jogging he ran through an alley in order to take  a short cut to a public convenience. He said that whilst running through the alley he was pushed to the floor and held down by PW2. He denied having P1 in his possession or being involved in the robbery of  PW1.

18. In cross-examination the defendant agreed that he did not know PW2. The defendant said he had a sling bag with him, was wearing a black hooded jacket and a scarf over his upper head to keep his hair back. He was unable to explain why he had the sling bag with him. The defendant said he sometimes wore jeans and a jacket whilst out jogging. The defendant denied that the black rubber gloves, P3, were found by PW4 in his pocket, he said that they were in his sling bag. He said he used them at home for washing up and could not explain why he had them in his possession whilst out jogging.

19. The defendant said he did not know why PW2 pushed him to the ground and held him there. He could not explain why he did not cry out for help.

Directions

20. I reminded myself that the prosecution are required to prove each and every ingredient of each offence beyond reasonable doubt. The defendant has nothing to prove. I reminded myself that I could draw no adverse inference against the defendant for remaining silent after his arrest. I also reminded myself that if  I reject the evidence of  the defendant that does not mean he is guilty of the offence. I have to consider the evidence I do accept and decide if that satisfies me of the guilt of the defendant to the required standard.

21. I reminded myself that, where the prosecution rely on circumstantial evidence, I can only draw an adverse inference from facts proved beyond reasonable doubt and such an inference must be the only inference that can be reasonable drawn from such facts, it must be an irresistible inference.

Evaluation of the Evidence

22. At about 3.30am PW1 was walking home along Cheung Sha Wan Road near Sham Shui Po MTR station when a male attempted to snatch her handbag,  snatched her mobile phone, P1, and ran off. She chased after him but lost sight of  him. Both at the time of the robbery  and afterwards  she yelled out “robbery” and “help”.

23. PW1 did not see the man’s face. She said he was about 21 to 12 and wore dark clothing. She said that he wore a scarf  over his face which was yellowish with yellow dots. She said that Ex P6/5, a photograph of the scarf  worn by the defendant,  looked like the scarf worn by her attacker. She met up with and told PW3 what had happened and told her that the robber had run into an alley.  PW1 said that PW3 told her that her brother had detained the man in an alley. PW1 said she later went into the alley when the police arrived. PW1 said that in the alley the police handed her P1 which she recognised. PW1 said there was ligthing in the alley and she could see that the man who had snatched her mobile phone was detained there.  PW1 was shown a photograph of the scarf worn by the defendant, P6/5, and she said she could identify the yellow dots pattern on the scarf  as the same as the pattern on the scarf worn by her attacker.

24. PW2 and PW3 were in the vicinity of the robbery and  hear a woman shouting robbery. Shortly afterwards a man walked past them wearing a scarf to cover part of his face. PW2 said he asked the man what was going on but the man ignored him. PW2 said that when someone shouted robbery the man began to run and he chased him for 100 yards never losing sight of him. He pushed the man to the floor and  later saw the man  pull something out from his rear pocket and discard it next to him. PW2 said his sister, PW3,  later appeared and he saw her pick put white object which he identified in court as P1.  The police later arrived and the man was arrested.

25. PW3 confirmed that when she went into the alley where PW2 was struggling with the man on the floor she saw the man discard something on the floor which she picked up. She said it was P1.

26. Both PW2 and PW3 said the scarf worn by the defendant was like the scarf worn by the man who had passed them earlier on. PW3 had mentioned that the man wore a hood. I noted that the jacket he was wearing had a hood.

27. PW4 said he found black rubber gloves in the defendant’s pocket, Ex 3.

28. I found PW1 -3 to be reliable and credible witnesses. I noticed that there were certain discrepancies between their versions as to precisely what happened at the relevant time but, in my view, the discrepancies were of a minor nature.

29. I was sure that PW1 was robbed by a young man in dark clothing wearing a scarf on which there were yellow dots. I bore in mind that she never saw the fact of the robber. I was sure that she recognised the scarf  found on the defendant when he was arrested as being very similar to the scarf worn by her attacker. I was sure that she correctly identified P1 as being her mobile phone and that when it was snatched from her hand the screen was intact.

30. I was sure that the defendant walked past PW2 a few minutes later wearing a scarf covering his face and that, given the weather conditions, PW2 found this odd. I was sure that after hearing a lady’s voice shouting out “robbery” PW2 saw the defendant start to run and followed him to an alley. I was sure after 100 yards PW2 pushed the defendant to the ground and whilst holding him upon the ground the defendant took out a white object from this rear pocket and discarded it the ground. I was sure that PW3 picked up the object which was later identified by PW1 as being her mobile phone, P1, which had been stolen from her nearby  a few minutes earlier. In evidence the defendant said he ran into the alley for the purpose of taking a short cut to a public convenience and he was knocked to the ground whilst he was still running. The case put to and denied by PW2 was that the defendant was standing in the alley for the purpose of urination when he was pushed to the floor.

31. The defendant was unable to give any explanation as to why he was carrying a waist bag with him at the time. I was sure he was lying as to the reason he was in the area. I did not believe his evidence. The fact that I did not believe his evidence did not mean he was guilty of the offence. I had to consider the evidence I did accept and decide if that satisfied me of the guilt of the defendant to the required standard.

32. The totality of the evidence left me in not doubt that the defendant was the person who had stole P1 from PW1 in the circumstances she described to the court. I was sure that the defendant robbed PW1 of her mobile phone.