HKSAR v. ZAHID

DCCC 985/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 985 OF 2016

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REASONS FOR VERDICT

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Charges

1.  In this case, the prosecution alleged that the defendant Zahid stole the credit card of another person, and used it to purchase three watches. 

2.  Since the credit card had been reported lost, and the defendant used it without the authorisation of its owner, prosecution contended that it was a stolen card.

3.  He faces two charges:-

(1) Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

(2) Obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210

He pleaded not guilty to both charges.

Background

4.  The evidence of Mr Ho Wai Kin, PW1, the owner of the credit card in question, was not challenged.  I accept his evidence and set it out as the background of the case:-

(i) Some time in the evening of 24 January 2016, PW1 went for dinner in a restaurant in Nathan Road, he parked his car in Fuk Wa Street. At about 10.30 pm, he found that a visa card (“the card”) he was carrying in his wallet had gone missing.

(ii) On 25 January 2016, the issuing bank of the card advised him that there was a transaction in his card.

The banker’s affirmation also confirmed a payment in the sum of HK$5,900 to Number 7 Watch Group on 27 January 2016 (P4).

PW1 never authorised the transaction or anyone to use his card.

Evidence

5.  The substance of the prosecution case came from Mr Chung Yat Chun, PW2, the salesperson working in the Number 7 Watch Group at Shop B1, Ground Floor, 337 to 339, Nathan Road, in January 2016 (hereinafter called “the shop”).

6.  At about 10 pm, on 24 January 2016, PW2 was alone, manning the shop when a group of four men of South Asian descent came in.  One of them asked to be shown two watches of the brand name Martin Ferrer; PW2 did as asked.  Eventually, the male decided to buy the two Martin Ferrer watches and a Casio watch (“the watch”), at a total price of $5,900.  That man paid for the purchase with the card. 

7.  Somehow that man left with the watches and both credit card receipts (ie copies kept respectively by the merchant and the customer).  Additional printouts, P2(1) to (2) confirmed that the visa card used was indeed the one belonging to PW1.

8.  PW2 identified the defendant was one of the group that came in, he spoke and dealt with him.  It was also the defendant who took out the card for making payment, left the shop with the three watches and the credit card receipts.  Although at that point, PW2 had sensed something amiss, but as he was the only person manning the shop, he was unable to go after the group. 

9.  The next day (25 January 2016), the defendant came back alone, asking him for help with the use of the watch.  After confirming with the record kept by the shop that it was indeed the same watch sold by PW2 the day before, and having consulted with his employer (PW3), PW2 decided to make a report to the police by telephone.  At that point, the defendant tried to leave, saying that he would come back later, and despite PW2’s attempt to delay his departure, the defendant left the shop, leaving behind the watch.  The bicycle he pushed to the shop and parked outside was also left behind. 

10.  PW2 kept chasing after the defendant.  Somewhere near Shanghai Street and Saigon Street, PW2 managed to put his hand on the defendant.  The latter slipped and fell, and with the assistance of two passers-by, he managed to subdue the defendant before the police arrived. 

11.  PW2 had been cross-examined thoroughly on his identification of the defendant, and it was only during the cross-examination that more details emerged.  He noticed the defendant’s clothing, saying that he was wearing dark clothes, and his was the darkest in the group.  The defendant was the only one who asked PW2 to show him the watches.  Although he did keep an eye on the things in the shop, his attention was mainly on the defendant, who was, amongst the four, the only one who had any face to face dealings with him during the visit.  The next day, the defendant visited the shop again, he was sure right away it was the same person.

12.  PW2 agreed that he could not tell from which country in South Asia a person came, therefore he would not be able to say if a person was from India, Pakistan or Bangladesh.  However, he added that South Asians might look similar in appearance, they did not look the same to him, as one’s features differed from another. 

13.  He also agreed that in describing the defendant in the witness statement, he mentioned the defendant had facial hair.  The word he used in the Chinese statement was “鬚”, which encompasses a moustache, a goatee, or a full beard.  The learned interpreter agreed that in the Chinese language, the word did not describe any particular style, but rather a general term describing facial hair. 

14.  PW2 also agreed that he did not mention this description in his testimony in court.  Nonetheless, PW2 was adamant that the defendant was the same person who came to the shop on 24 and 25 January 2016. 

Assessment

15.  There had been no identification parade, but there could be no dispute that the defendant was identified by PW2 on 25 January 2016 as the one who visited the shop on the previous night.

16.  In assessing PW2’s evidence on identification, and to avoid the risk of injustice, I remind myself of the rules laid down in R v Turnbull [1977] QB 224, as followed in Hong Kong, in the case of Chik Shui Wai v R [1977] HKLR 259. 

17.  I am fully aware that a witness, however honest and well-intended, could be mistaken.  PW2’s conviction that the defendant was the one who visited the shop, and used the card to buy three watches on 24 January 2016, could, however honest he might be, still be a mistaken belief, and therefore may be unreliable. 

18.  In my view, PW2 gave a clear and precise description of what had transpired in the evening of 24 January 2016.  It was not a case of fleeting glimpse or a chance encounter.  PW2’s primary duty that night was to serve customers.  The defendant came in as a customer in a shop that was open at the time.  The defendant had verbal exchanges with PW2, and as a result, PW2 mainly concentrated on the defendant.  The defendant requested PW2 to show him the watches, and they agreed on a total price for the three watches. They were face to face when they spoke, and in close proximity during the encounter.  The defendant stayed for 15 to 20 minutes inside the shop. 

19.  Having examined carefully the whole of PW2’s evidence, I am satisfied beyond any reasonable doubt that he was an honest witness doing his best to give all the details he could remember about what had happened during the two encounters in January 2016 with the defendant.  I am satisfied beyond any reasonable doubt that PW2 had a good look at the defendant and had correctly identified the defendant both in court and in 25 January. 

Other evidence

20.  At 1758 hours, PC19649 Mui Chun Yeung (PW4) arrived at the junction of Shanghai Street and Saigon Street.  There, he saw the defendant surrounded by PW2 and two other passers-by.  After some preliminary enquires, he searched the defendant, and found in his trousers pocket a plastic bag containing two cards and extra loose links for a watch bracelet (P3(a)). 

21.  Under cross-examination, it had been suggested that P3(a) was not found on the defendant, to which PW4 denied.  Such suggestion would necessarily mean that P3(a) was planted on him by the police officer.  Such suggestion not only was not supported by evidence, it was impossible because there was no evidence that PW4 knew of the incident in the evening of 24 January 2016 prior to being summonsed to attend the scene on 24 January 2016, where the defendant was intercepted by PW2 and the civic-minded citizens. I could see no conceivable knowledge, motive or opportunity on the part of PW4 to be carrying P3(a) for the purpose of planting it on the defendant. 

22.  Mr Chu Wing Pak, Winson was the employer of PW2, and the owner of the shop (PW3).  He identified that P3 was a Casio watch sold by his shop on 24 January 2016, and was seized by the police from the shop, and that P3(a) were the two cards and extra links to the watch chain belonging to watch in question. 

23.  Both witnesses’ testimonies had been unshaken under cross-examination.  I believe that they are truthful witnesses and have given an accurate account according to what they knew. 

24.  The undersigned also and has the opportunity of examining P3 and P3(a).  I am satisfied that P3 was the same watch and model described and pictured in the two description cards, and the extra links were the same as the ones on P3. 

Defence case

25.  The defendant elected to give evidence after I ruled that there was a case to answer for both charges. 

26.  The defendant was born in Pakistan in 1984, and had been living in Hong Kong since 1998.  He is now a Hong Kong resident, married with two children.  He works as a part-time construction worker.  In January 2016, his family was living with his cousin, Khan Naveed in Jordan. 

27.  On 24 January 2016, he left home at 6 am to go to work in North Point.  He came home after work and, save for a short trip to the McDonald’s at around 7 pm, he stayed at home.  On the morning of 25 January 2016, while he was out with his bicycle, he happened to run into a friend of a friend, Fareed Ali, who owed him $500 (he produced a bank passbook indicating that there was a withdrawal to that amount on 10 September 2015 (D2)).  Upon seeing his friend, he demanded immediate repayment, Fareed Ali said he had no money, instead offered to give him a watch (the watch that had been stolen from the shop the night before).  He even took him to show him the shop where he bought it before going on his way. 

28.  As the bracelet of the watch was too long for him, the defendant decided to take it back to the shop for adjustment.  He went back to the shop about 90 minutes after parting with Fareed Ali.  A Chinese girl in the shop was at the time serving another customer, so the defendant waited for 15 minutes for his turn. 

29.  He was subsequently told that it would take 15 to 20 minutes for adjusting the strap, whereupon the defendant said he would come back later to collect it.  Then the Chinese girl said something to another man in the shop, the latter came out and grabbed the defendant, swearing at him at the same time in Chinese foul language.  At this point, two other men came in from the outside and started beating him.  The defendant then went outside the shop with the three persons in pursuit.  At some point, he was hit on the back of his thigh by a stick and fell, it was where he was subdued. 

30.  In short, the defendant stated that he was at home in the evening of 24 January, he did not go to the shop in question.  The next day, he happened to run into a friend who gave him the watch, in lieu of the debt he was owed, he took it back to have the strap adjusted.  That PW2 alleged the defendant was the one who came to the shop on the earlier occasion was a case of mistaken identity.  Again, what happened on 25 January was a misunderstanding.

Assessment of the defendant’s evidence

31.  In chief, the defendant gave an account of the events smoothly.  However, under cross-examination, when confronted with questions collateral to his version of events, I found that he had been evasive, and unnecessarily so.  In one instance, when he was asked if he considered the debt settled after having been given the watch, he failed to give a straight reply, despite that the same question had been repeated four times. 

32.  I also found the substance of what he had said unbelievable.  The account of how he happened upon his friend who happened to have owed him money, and who happened to have the watch in question was inherently improbable.  It took too many leaps of faith to accept that there had been so much coincidence that happened within so short a time. 

33.  In particular, I found the following features of his account flied in the face of ordinary course of events:-

•   that he happened upon a friend whom he had not seen for a long time, and who happened to have been in possession of a stolen watch, in the vicinity of the shop.

•   that he waited for 90 minutes before going into the shop to have the strap adjusted.

•   that he would wait for 15 to 20 minutes for his turn to be served, but decided that another 30 minutes of wait too long, and insisted on leaving despite the shopkeeper’s plea for him to stay.

•   that suddenly, two persons appeared to beat him up for no apparent reasons.

34.  In particular, I find what he said simply did not fit in the undisputable fact that, at the time of his arrest, he had with him the extra links for the watch’s straps, and also two cards describing the watch.

Alibi

35.  Of course, what happened on the 25th was collateral to the event on the 24th.  The defence was one of alibi.  He was not at the scene to commit a crime. 

36.  In assessing this part of the evidence, I am fully aware that it is for the prosecution to disprove the alibi.  Even if I did not believe in the alibi, it is still for the prosecution to prove that he was the one who committed the crime, the defendant having no duty to prove he was elsewhere at the time the crime was committed.  The defendant contended that he was home after work on 24 January, save for a short trip to buy takeaways from the McDonald’s.  He did not go to the shop at 10 pm that night.

37.  Under cross-examination, it had been repeatedly suggested to him that the day in question was no different from any other, and hence he cannot possibly be sure what happened in that particular evening.  The defendant again failed to give a straight answer. 

38.  Mr Khan Naveed gave evidence to support the defendant’s alibi.  At the time the defendant’s family was staying with him, and the unit was separated by a curtain, each family occupied one side of the apartment.

39.  On 24 January 2016, he was woken up by the defendant when the latter was leaving for work.  He was home when the defendant came back at about 6 pm.  The defendant left for 20 to 25 minutes to buy dinner for the family at the McDonald’s.  Afterwards, he did not go out again. 

40.  Under cross-examination, Mr Khan was asked why he could remember the particular evening, to which question he simply answered, “I remember”.  He had not given a witness statement about this alibi, and had not told anyone about the contents of his evidence.  I note that Mr Khan’s evidence in court was identical to that of the defendant, down to the estimated time of the defendant’s trip to buying dinner. 

41.  Having considered his evidence as a whole, I find myself unable to believe him.  I found it was inherently improbable that one can recollect the events of a particular day in which apparently nothing special happened.  Nor do I believe in the defendant’s evidence in the alibi.  I did not find the evidence capable of giving rise to any reasonable doubt in prosecution’s case.

42.  That said, the burden is still on the prosecution to prove the case beyond all reasonable doubt. 

Findings

43.  Having studied the evidence from the prosecution, I am satisfied beyond all reasonable doubt that the defendant came to the shop in the evening on 24 January 2016.  He asked PW2 to be shown the watches and then decided that he would buy three.  He paid for the same with the card. 

44.  As the card did not belong to him, and the owner of the card (PW1) did not authorise him to use the card, he had used the card as if he was the owner.  Therefore I found beyond all reasonable doubt that he had stolen the card. 

45.  By the same token, he had used the card to buy the three watches.  Therefore, in so doing, he was representing that he was the owner of the card to the shop as well as to the shop attendant. 

46.  I am satisfied beyond all reasonable doubt that the defendant is guilty of both charges.