HKSAR v. TUMENJARGAL, SONSGOODOI Appellant

HCMA1041/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1041 OF 2009

(ON APPEAL FROM ESCC 4978 OF 2009)

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    REASONS  FOR  JUDGMENT

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1. on 7 December 2009 the appellant was convicted after trial of one charge of attempted theft contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200. 

2. He was on that day sentenced to be imprisoned for 12 months.  He appealed both conviction and sentence.  On 6 May 2010 I dismissed his appeals against conviction and sentence and said that I would hand down my reasons in due course.  These are my reasons. 

3. The appellant was jointly charged.  His co-accused was acquitted.  It was the prosecution case that at about 6:30 p.m. on 12 October 2009 on board a Tsim Sha Tsui bound MTR train he together with his co-accused attempted to steal the wallet of another passenger. 

4. The appellant was represented in the lower court. 

5. He did not give evidence in his defence. 

6. PW1 was the alleged victim.  It was his evidence that at about 6:30p.m. he was intending to travel from Admiralty to Tsim Sha Tsui by MTR.  When the train arrived and the doors opened and as he entered the carriage he was pushed several times from behind.  This caused him to trip over a suitcase belonging to another passenger.  Before the doors of the compartment closed he was confronted by a man who tried to pull him from the train.  This man eventually identified himself as a police officer.  He explained to PW1 that someone had attempted to steal his wallet.  By this time the train doors had closed and it had begun to move.  He was aware that there was also some struggling taking place nearby but he did not then realize that it was in any way connected with him. 

7. His wallet he said had been in the right back pocket of the jeans he was wearing.  He said that he was not aware that it had been removed from his pocket until a police officer showed it to him during the course of the journey between Admiralty and Tsim Sha Tsui. 

8. The second witness in the prosecution case was PC53469 Mak Ho Yin (“PW2”).  He described how on 12 October 2009 he and other police officers were on duty at the Admiralty MTR station.  They were in plain clothes and were specifically on the lookout for pick pockets. 

9. He said he saw two men acting in a way that aroused his suspicions.  Whilst the platform was crowded with peak hour travellers they were not queuing up to board the train.  They were “chatting with each other and looking at the belongings of other passengers”.  He alerted his colleagues to his concerns. 

10. When the train on the Tsuen Wan line entered the platform.  He saw the two males rush forward and stand behind and on either side of an expatriate male — this was PW1.  When the train doors opened and passengers began to board one of the men pushed forcefully against the back of PW1.  This was the appellant’s co-accused.  He saw at the same time the other male (the appellant) use his right hand to take hold of the wallet in the right rear pocket of PW1’s jeans.  PW2 moved forward and grabbed hold of the appellant’s right wrist.  After he had grabbed hold of the appellant’s wrist the wallet, then in the appellant’s hand was pushed back into PW1’s pocket.  He asked his colleague to request PW1 not to leave and at the same time arrested the appellant who was struggling. 

11. The officer who spoke to PW1 did not give evidence in the trial.  A third police officer PC4868 gave evidence as to his arrest of the co-accused. 

12. Thus it was the evidence against the appellant came from the plain clothes police officer PW2.  PW1 was not aware that anything had happened until spoken to by PW2’s colleague.  Apart from being forcefully pushed from behind he did not feel anyone touching him or his wallet. 

13. There were discrepancies in the evidence of PW1 and PW2.  These were canvassed extensively in closing submissions.  There can be no doubt that the magistrate was alert to them.  The most significant of these being that PW1 had said that the police officer who spoke to him (not PW2) was holding his wallet in his hand at the time whereas PW2 said that the appellant when grabbed by him had pushed the wallet back into PW1’s pocket and it was thereafter produced for examination by PW1 when asked to do so by his colleague. 

14. It is the substance of the grounds of appeal that the magistrate failed to deal with this and other discrepancies adequately — or at all — and therefore the conviction is unsafe and unsatisfactory. 

15. It is asserted that in the course of his attempts to resolve the inconsistencies as they were the magistrate “was biased and/or erred in having the case found on speculation”.  The allegation of bias was withdrawn.  It should not have been made. 

16. As I have already stated there were discrepancies in the evidence.  For example neither of the police officers observed a lady with a suitcase obstructing PW1 as he entered the train compartment.  It was their evidence that the focus of their attention was not the other passengers but PW1 and the two men who had earlier alerted their suspicious.  The magistrate accepted that the police officers attention was focused on the appellant and his co-accused and not the other passengers.  He therefore did not consider the fact that they did not notice the other passenger with the suitcase was unreasonable.  I agree.  It is to be remembered that this was taking place on a peak-hour MTR train.  It is apparent that there was some confusion.  At the time PW2 was attempting to apprehend the appellant, his colleague was attempting to persuade PW1 to leave, the train with him before the doors closed.  The magistrate was alert to this aspect of the evidence and rightly did not regard it as significant. 

17. It is suggested that the fact that PW1 was unaware that his wallet had been partially removed from his pocket and replaced should have given the magistrate cause to doubt the evidence of PW2.  I disagree.  As the magistrate properly observed PW1 had been on his account pushed forcibly from behind several times and had then tripped over the other passengers suitcase.  In those circumstances nothing turns on the fact that he was unaware that his pocket was being picked.  It is in the nature of the offence of pick-pocketing that the victim does not know that his property is being taken. 

18. The only discrepancy of any moment was PW1’s evidence that PW2’s colleague was holding the wallet when he spoke to PW1 contrasted with the evidence of PW2 that the wallet was pushed back into PW1’s pocket by the appellant and was later produced by PW1 when requested to. 

19. The magistrate dealt with the matter in this way he said :

“20. According to PW1’s evidence, a police officer was holding his wallet and showed it to him after he had entered the train.  PW2 said in his evidence he asked PC45577 to intercept PW1 to ask PW1 to take out the wallet in order to confirm it was the one taken by D1.  PW2 then saw PC45577 intercepting and asking PW1 to hand over the wallet.  Based on this evidence, I believed it explained why PW1 said a police officer was holding his wallet.  I believed PW1 forgot to tell the court he was asked by the police to hand over his wallet for examination.”

20. In this passage the magistrate was speculating.  It had never been suggested to PW1 that he had been asked by PW1’s colleague to produce his wallet.  His evidence was clear and unequivocal.  The officer held the wallet in his hand and showed it to him.  The magistrate’s basis for reconciling the two versions of this part of the evidence is untenable.  It was not sufficient to say that PW1 must have forgotten about this part of his evidence. 

21. As I have earlier indicated the other inconsistencies if they even were inconsistence would give me no cause for concern. 

22. I must then decide whether this apparently irreconcilable discrepancy impacts on the evidence of PW2 to the extent that it cannot be relied upon. 

23. I am satisfied that it does not.  

24. The two different accounts were apparent from the outset and yet at no time in the cross-examination of PW2 was it suggested that the wallet had been removed from PW1’s pocket and handed to his colleague who in turn showed it to PW1.  In evidence-in-chief PW2 said this :

“Q:    Yes, I would like you to clarify, you just mentioned P.2 the wallet was stuffed back into the pocket of the victim by D1.

A:  Yes, that’s correct.

Q:  and then what happened to the wallet

A:  Then I told my other colleague, that’s 4557, and after intercepting the victim of this case, that’s the foreign male and we asked the foreign male to take out his wallet to let me confirm that that’s the wallet which I saw D1 taking.

Q:  Did you see that with your own eyes?

A:  Yes

COURT:   You saw it with your own eyes what?  You saw what?  Can you clarify?

A:  I saw it with my own eyes that D1 picked it from the right back trouser pocket of the victim. 

Q:  I mean, did you see with your own eyes that your colleague 4557 intercept the victim and asked the victim to hand over the wallet

A:  Yes.”

There was no challenge to this evidence in the cross-examination of PW2. 

25. What must be remembered is this.  PW1’s evidence was that his first appreciation that something untoward had happened was when one police officer.  (not PW2) grabbed him by the arm and said “come out come out police”.  He said this happened before the train doors had closed and at about the time he was trying to collect himself having stumbled over the other passenger’s suitcase. 

26. He said that he was surprised by this.  The police officer tried to pull him out of the train and at the same time other passengers were still trying to board.  It was then that he realized that some sort of struggle was taking place.  Even at this time he did not know that this person was a police officer.  It was only after the train doors closed that the person who was grabbing him identified himself as a police officer by showing him his card. 

27. Whatever may have been the reason for the discrepancy I am satisfied that it does not in the circumstances of this case cause me to doubt the evidence of PW2.  Nor do the other matters raised on behalf of the appellant. 

28. The conviction was neither unsafe nor unsatisfactory. 

Sentence

29. The appellant was unrepresented in his appeal against sentence. 

30. He told me that he was innocent, wrongly convicted and wanted to go home.  He is a 21-year-old student from Mongolia who came to Hong Kong 2 days before the offence for sight seeing.  

31. The sentence of 12 imprisonment was passed after trial.  It was well within the range of sentences imposed for this type of offence see HKSAR v Kau Kien and another [1991] 1 HKLR 422, HKSAR v Chan Ho Kwai [2000] 2 HKLRD 214.  

32. The appeal against sentence was likewise dismissed.