HKSAR v. LAU WA KWO AND ANOTHER

DCCC 1003/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1003 OF 2012

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REASONS FOR VERDICT

1.  D2 pleads not guilty to one joint charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Chapter 210 (charge 1) and one joint charge of using a false instrument, contrary to section 73of the Crimes Ordinance, Chapter 200 (charge 3). D1 has earlier pleaded guilty to these two charges and to one further charge of handling stolen goods (charge 2).

Introduction

2.  During the early hours of the 19 July last year the home of Madam Chan and Mr Pok was burgled.  Various items were stolen in the burglary some of which were later found in the home of D1; a Sony Ericsson mobile phone was in D2’s possession on arrest; and a blank cheque pre-signed by Mr Pok together with Mr Pok’s identity card were recovered from HSBC when D1 left them at the bank after attempting to obtain $50,000 with the cheque which had been filled out with D1 named as the payee.                                                                                                                                                

3.  In summary the prosecution case is that D1 and D2 jointly received all the goods particularised in charge 1 knowing or believing they were stolen goodsand that D2 was present in the bank when D1 uttered the cheque knowing she was attempting to obtain money with the cheque and thereby encouraged the commission of the offence. The defence case in summary as told by D2 to the police in various video interviews is that D2 did not receive the goods, save for the Sony Ericsson mobile phone which he did not know or believe to be stolen.  D2 only accompanied D1 to the bank and was not a party to the use of the cheque to obtain $50,000.

Evidence

4.  16 of 24 witnesses set out in the list of prosecution witnesses supplied to court at the beginning of the trial were called or tendered for cross-examination together with one additional witness (PW25).  For ease of reference the same witness number was given although all the witnesses were not called and those that were called were called in a different order. 

5.  Similarly the numbering of exhibits produced followed the list supplied to court at the beginning of trial save the photographs, exhibit P27 were marked exhibit P1, the original photographs listed as exhibit P1 not being produced.  Additional exhibits were also produced.

6.  The witness statement (exhibit P33) of Chan Kin Chuen (PW3) was read pursuant to section 65B of the Criminal Procedure Ordinance, Chapter 221 as was the statement (exhibit P34) of an additional witness Li Junrong.  Facts were admitted pursuant to section 65C of the Criminal Procedure Ordinance (exhibits P36 & 36A).  These were largely of a formal nature and I will refer to them when the need arises.   

7.  D2 elected not to give evidence and called no witnesses.  Admitted in evidence are four video interviews (exhibits P29-32).   

8.  The civilian witnesses called were Madam Chan (PW1) and Mr Pok (PW2) as to the burglary; Cheng Ka Shing (PW4) the bank teller of HSBC when D1 presented the stolen cheque; and the two Vietnamese interpreters Ng Cheuk Ping (PW21) and Shek Suet Mui (PW22), who assisted the police in the conduct of the video interviews.

9.  The remaining witnesses were police officers who testified, inter alia, as to the search of D1’s home and the seizing of exhibits; the viewing of CCTV of D1’s home; the arrest of D2; the finding of the Sony Ericsson mobile phone (exhibit P9) in D2’s possession and the four video interviews. 

10.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  D2 has to prove nothing.  No adverse inference is drawn against D2 for remaining silent.  That is his right.  This proves nothing one way or the other.  The prosecution must prove the charges beyond reasonable doubt.  I direct myself that I must be sure of D2’s guilt before I can convict.  On the other hand if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and D2 entitled to be acquitted.

11.  I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

Handling stolen goods

12.  A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestlyreceives the goods.

13.  Madam Chan and Mr Pok gave evidence as to the items stolen in the burglary.  15 items were recovered (exhibits P3-P17) of which all except the Apple iPhone (exhibit P3) are particularised in charge 1.  The Apple iPhone is the subject of the handling charge to which D1 has pleaded guilty.  Mr Pok however could not identify two of the ATM cards (exhibits P14 & P15).  These cards were found by WDPC 4941 (PW6) inside D1’s home in a bag (exhibit P25) together with eight other items, mostly cards (exhibits P4-P8, P11, P12 and P17) all of which were stolen in the burglary.

14.  I accept the evidence of Madam Chan and Mr Pok as to the items stolen in the burglary, evidence which was not challenged.  All the cards being found together I am satisfied the only inference to draw is that exhibits P14 and P15 are Mr Pok’s two ATM cards stolen in the burglary.

15.  The issues in respect of the charge of handling stolen goods are whether the prosecution have proved beyond reasonable doubt that D2 knew or believed the goods to be stolen goods and that he dishonestly received the goods and in respect of the charge of using a false instrument whether D2 was knowingly a party to the use of the stolen cheque.

16.  I have carefully considered all the evidence and the oral and written submissions of Mr Tracy and Mr Andrews together with the additional submission of Mr Andrews by letter dated the 21 May 2013. 

Admissibility of the video interviews

17.  The only evidence against D2 is that on arrest he was in possession of one of the items stolen in the burglary, namely the Sony Ericsson mobile phone, (exhibit P9) and the content of the four video interviews.  I will first give my reasons for ruling the four video interviews (exhibits P29-P32) admissible in evidence.

Background

18.  D2 was arrested on the morning of the 2 August 2012 by PC 12692 (PW8) and taken to the Sham Shui Po police station.  Later the same day DPC 33617 (PW11), DPC 34211 (PW10), DSgt 46293 (PW14) and DSgt 22680 (PW25), officers from CID Team 2, Tsuen Wan District, went to Sham Shui Po police station to collect D2 and take him to Tsuen Wan police station for investigation. The interviews were conducted by DPC 33617 together with DPC 34769 (PW12) on the 2 and 3 August and with DSgt 46293 on the 21 August. 

19.  The fact the interviews were conducted together with the assistance of a Vietnamese interpreter was admitted.  The accuracy of the transcripts of the interviews was also admitted (see paragraphs 4-7 of the admitted facts, exhibit P36).  The defence position was that whilst they did not object to the admissibility of the interviews it was for the prosecution to prove voluntariness.

20.  In cross-examination of the arresting officer PC 12692 (PW8) allegations of threats were made against the Tsuen Wan police officers.  In the absence of the witness I clarified the position with Mr Andrews.  Mr Andrews confirmed that although allegations of threats and assault were to be made against the police officers the defence did not object to the admissibility of any of the interviews. 

21.  Mr Andrews explained the conduct of the police was relevant as to the credibility of the police officers in understanding the context and background in which the interviews were conducted.  Specifically Mr Andrews said his case was that the Tsuen Wan police officers were concerned with getting admissions of burglaries from D2. 

22.  Notwithstanding Mr Andrews informed the court the interviews were not challenged I was of the view allegations of impropriety being alleged the court must hold a voire-dire and consider the question of voluntariness in light of these allegations.  I therefore stood the case down for Mr Andrews to write out the particulars of impropriety alleged against the police officers. 

23.  This Mr Andrews did and they are marked “A” for identification.  The allegations included that D2 was threatened in the Sham Shui Po police station; assaulted in the car on the journey from Sham Shui Po to Tsuen Wan; and further threatened and assaulted prior to the conduct of the first video interview.  No specific allegations of impropriety were made in respect of the interview conducted 19 days later at Lai Chi Kok. 

Evidence

24.  Eight witnesses gave evidence relating to the video interviews.  In summary DPC 33617, DPC 34211, Sgt 46293 and DSgt 22680 testified about going to Sham Shui Po police station in the afternoon of the 2 August to collect D2.  Having brought D2 to Tsuen Wan police station two video interviews (exhibits P29 & 30) were conducted in the evening of the same day by DPC 33617 and DPC 34769 with the assistance of a Vietnamese interpreter Ng Cheuk Ping (PW21).  Prior to the first interview with the assistance of the Vietnamese interpreter DPC 33617 served on D2 a Notice to Persons in Custody (exhibit P37).  Miss Ng testified she faithfully and accurately interpreted from Cantonese to Vietnamese and vice versa.

25.  The next day DPC 33617 and DPC 34769 conducted a further video interview (exhibit P31) this time with the assistance of Vietnamese interpreter Shek Suet Mui (PW22).  Prior to the interview with the assistance of the Vietnamese interpreter DPC 34769 served on D2 a Notice to Persons in Custody (exhibit P41). 

26.  On the 21 August DPC 33617 together with DSgt 46293 went to Lai Chi Kok Reception Centre and conducted a video interview (exhibit P32).  Prior to the commencement of the interview DPC 33617 served on D2 a Notice to Persons in Custody (exhibit P37).  The police were again assisted by Vietnamese interpreter Shek Suet Mui.  Miss Shek testified she faithfully and accurately interpreted from Cantonese to Vietnamese and vice versa on both the 3 and 21 August.

27.  The four police officers testified that they did not nor did anybody else assault, threaten or induce D2.  In cross-examination they each denied all allegations put to them.  The arresting officer PC 12692 also denied the allegation that the four police officers entered the room where he was interviewing D2 and threatened D2.  DPC 34769 who assisted in the video interviews on the 2 and 3 August denied the allegations that D2 was threatened and assaulted in the Tsuen Wan police station prior to the commencement of the first interview.

28.  D2 gave evidence largely consistent with the particulars of impropriety supplied to court, although the sequence was not always the same for example the assault in the Tsuen Wan police station was after the commencement of the first video interview and not before as put in cross-examination and stated in the particulars. 

Ruling

29.  The issue was one of credibility the evidence of the prosecution materially conflicting with the evidence of D2.  Having carefully considered all the evidence I was satisfied so I was sure that the police officers were witnesses of truth upon whose evidence I could safely rely.  I had no hesitation in rejecting the allegations of impropriety attributed to the police officers by D2.

30.  I did not find D2’s evidence credible, for example that after the first video interview was started the police stopped the machine and took D2 out of the video interview room into a small room next door where they threatened and assaulted him because every answer he had given to that point in time was he did not know; and that the police then told D2 that when he was taken back into the video interview room he was to say “this and that”. 

31.  In cross-examination D2 was unable to explain what he meant by “this and that”. First he said he could not remember and when the question was repeated D2 replied the police told him it was not OK for him to say he did not know anything and that he could say he did not remember but not to every question.  I have also checked the first video interview and there is nothing in the record supportive of what D2 alleged.  The only break is at the end of the interview when D2 asks to go to the toilet (see entry 1105).

32.  When reading the interview I saw reference to D2 taking drug withdrawal water.  This indicated D2 may have a drug history and was therefore a person of bad character.  I completely disregarded this reference in determining the admissibility of the interviews.

33.  In reaching my decision I carefully considered the submission of Mr Andrews, in particular that it was unnecessary for four police officers, including two Detective Sergeants to collect a wanted person.  Mr Andrews submitted four police officers went so that they could at the earliest opportunity put pressure on D2 to admit burglaries.  Mr Andrews submitted this was consistent with DPC 33617 writing in his witness statement the police officers went to get a better understanding of the case and with the fact the next day D2 was interviewed about other unsolved burglaries.

34.  Whilst police time could perhaps have been better utilised the fact that four police officers collected D2 did not cause me to doubt their evidence nor did the fact that they could have waited until they received a call from Sham Shui Po police station saying D2 was ready for collection. 

35.  I accepted the evidence of DSgt 22680 that he drove the car to Sham Shui Po because there was no extra manpower due to another case being handled that morning. I accepted the evidence of DPC 33617 that by a better understanding he meant finding out what had happened during the arrest and gave as an example to find out whether any exhibits had been found and whether D2 had made any admissions.  I also accepted DPC 33617’s evidence (in answer to the court) that he only became aware the following day of other outstanding burglaries.

36.  I also considered the discrepancy in the evidence between DSgt 22680 and DPC 33617 concerning collecting D2 from the report room.  DSgt 22680 testified that whilst waiting in the canteen he received a message from the Duty Officer that D2 was ready for collection whereas DPC 33617 testified that the four police officers went down to check on the progress and after waiting for about 10 minutes saw PC 12692 hand over D2 to the Duty Officer.  This discrepancy however did not cause me to doubt the police evidence they did not go into the room where PC 12692 was interviewing D2.

37.  I was satisfied so I was sure that there was no material and significant discrepancies, improbabilities or omissions in the evidence, which caused me to doubt the evidence of the police officers.

38.  Specifically concerning the last interview (exhibit P32) which concerns the Sony Ericsson mobile phone (exhibit P9) found in D2’s possession on arrest.  The interview was conducted at Lai Chi Kok Reception Centre after D2 was charged.  DPC 33617 (in answer to the court) explained that although he knew this mobile phone was in D2’s prisoner property he was not aware at the time of arrest that this mobile phone was stolen in the burglary.  Only later did he become aware of this and therefore interviewed D2 again.

39.  DPC 46618 (PW9) told the court that on the 7 August when Madam Chan attended the police station to identify exhibits the police had recovered she told him that another mobile phone had been stolen in the burglary.  When Madam Chan described the phone to DPC 46618 this reminded him that he had checked a mobile phone given to him by DPC 33617 on the afternoon of the 2 August.

40.  DPC 46618 immediately informed the officer in charge of the case but did not checkwhether the phone was in fact the same because he went on leave.  In court DPC 46618 identified the mobile phone he checked on the 2 August was the Sony Ericsson (exhibit P9), which Madam Chan also identified in court as being stolen in the burglary (although I note Madam Chan did not testify as to when she first told the police that this mobile phone was also stolen in the burglary).

41.  I accepted the explanation given by DPC 33617 and in the circumstances was satisfied that this was an exceptional case as provided by Rule III of the Rules and Directions for the Questioning of Suspects and the Taking of Statements.

42.  Having carefully considered all the evidence and the submissions made I found I was satisfied beyond reasonable doubt that the video interviews were each given voluntarily, each interview considered separately.  I found no grounds to exercise my discretion to exclude from evidence any of the four video interviews on the grounds of unfairness.

43.  Having ruled the interviews admissible Mr Andrews informed the court there were two matters in the interviews which in the normal course would have been edited. Having already informed the parties I had read the interviews in light of the allegations made Mr Andrews assumed I had seen what he was referring to.  I said if Mr Andrews was referring to drug withdrawal water at the beginning of the first video interview then I had.  Mr Andrews then said there was a reference to D2 meeting a man in jail.  This reference I informed the parties I had not seen when reading the interviews.  Mr Andrews told the court that as long as I directed myself to pay no regard to these matters that would suffice for his purpose. 

44.  The explanation given why these matters were not edited was that the certified translations of the interviews arrived very late.  This was most unsatisfactory.  Any matters the parties agreed should properly be edited should have been done prior to trial.  In my view whether a direction as suggested by Mr Andrews was appropriate depended on whether this was on the instructions of D2.  The case was therefore stood down for Mr Andrews to take instructions from D2.

45.  Having taking instructions Mr Andrews informed the court that the trial was to proceed. I confirmed with D2 that notwithstanding I knew he had been in jail and had taken drug withdrawal water that he wished me to continue the trial and did not want to seek a new trial before a new judge.  D2 confirmed that he wished me to continue with the trial.

46.  In considering whether I should continue to hear the case I bore in mind that said by the Privy Council in Attorney General  v Siu Yuk Shing [1989] 2 HKLR 97 as applied in HKSAR v He Pingsheng & another CACC 98/2006.  The Privy Council at page 102 said:

“It is not without significance that this was a trial by a judge alone. If the judge had been sitting with a jury he would have had to weigh carefully the probative value of such previous conviction against the prejudice to the accused that would be likely to arise in the minds of the jury. The risk of such prejudice overbearing the probative value of evidence is of infinitely less significance when a case is tried by a judge alone. The judge must of course guard against any such result but his whole background and training have fitted him to do so. In a trial by a judge alone the exercise of excluding the evidence on grounds of prejudice becomes somewhat unreal when it is remembered that the judge must be informed of the nature of the evidence in order to rule upon whether or not it is inadmissible. If the judge having ruled it inadmissible is to be trusted to put the evidence out of his mind he can surely be trusted to give it only its probative, rather than its prejudicial, weight if he rules that it is admissible.”

47.  Having carefully considered the relevant principles and that there was no objection to my continuing to hear the case from D2 I proceeded with the trial. Notwithstanding the attempts of both Mr Andrews and Mr Tracy to try and tell me what was to be deleted and whether or not it was prejudicial I directed that the offending parts be edited, in particular as I had not read the part referring to being in jail.  In reaching my verdict I have disregarded entirely reference to D2 taking drug withdrawal water and having been in jail.

Knowing or believing the goods were stolen

48.  In the video interview (exhibit P29) D2 in summary says that he went to D1’s home around 5-6 p.m. on the 18 July and stayed overnight.  Around 1-2 a.m. D1 went out to burgle.  At five something D1 returned carrying a bag.  D2 went back to sleep and in the morning he sees goods placed on the floor which he says D1 told him were obtained by burglary (see entries 254-273 and 358-518).  In the course of the interview and the next interview (exhibit P30) D2 was shown all the items particularised in charge 1 except the Sony Ericsson mobile phone (exhibit P9), and confirmed he had that morning seen all these placed on the floor in D1’s home.

49.  I am satisfied full weight is to be attached to these admissions that D2 saw these goods and knew they were obtained from burglary.  I will later specifically consider knowledge or belief that the Sony Ericsson mobile phone was stolen.

Receiving

50.  The prosecution must prove that D2 took possession or control of the goods.  Save for the Sony Ericsson mobile phone which was in the D2’s possession on arrest there is no evidence D2 possessed any of the other items.  At no time in the interviews does D2 ever say that he took possession or control of any of the other items particularised in the charge.  To the contrary D2 asserts that he did not come into contact with the goods stolen in the burglary (see entries 269-272, exhibit P31). 

51.  Mere knowledge that the goods are stolen property does not suffice to prove receiving those goods.  Mr Tracy submits that D2 was in a joint venture with D1 to handle all stolen property.  Mr Tracy relies on reference in the various interviews to knowledge that D1 is a serial burglar (see for example entries 410-420, exhibit P29 and 850-877, exhibit P30) and that D2 has handled other stolen property for example a purple computer (see entries 294-560, exhibit P30).

52.  There is however no admission by D2 in any of the interviews of a joint enterprise to receive all or any goods stolen by D1.  Again to the contrary D2 asserts he did not live permanently with D1 (see entry 814, exhibit P29) and that D1 sells the goods but he never received any money (see for example entries 518-533, exhibit P29 and 938-946, exhibit P30).

53.  In my view it is necessary for the prosecution to prove D2 actually received each of the goods particularised in the charge and not that he merely saw them on the floor in D1’s home.  Save for the cheque, Mr Pok’s identity card; the two ATM cards and the Sony Ericsson mobile phone which require separate consideration, the prosecution have failed to prove D2 received the items particularised in the charge.

Uttering the cheque (exhibit P16)

54.  Cheng Ka Shing (PW4) gave evidence that on the 27 July D1 requested to cash the cheque (exhibit P16).  The cheque when presented to Mr Cheng wasas shown in photographs, exhibit P1A & B.  Mr Cheng noticing there were a number of amendments and signatures on the cheque decided to consult with his manager and therefore asked D1 to wait for a while.  After examination of the cheque it was believed the signatures were forged therefore the manager tried to contact Mr Pok, the drawer of the cheque.

55.   Mr Cheng returned to the counter and asked D1 to produce her identity card.  D1 produced Mr Pok’s identity card (exhibit P10) which had been stolen in the burglary.  Again Mr Cheng asked D1 to wait while he consulted with his manager.  Shortly after a colleague told Mr Cheng that D1 was looking for him because she had given him the wrong identity card.  Mr Cheng returned to the counter when D1 told him she had produced the identity card of her husband.  D1 then produced her own identity card (exhibit P18).  Mr Cheng checked the card and compared the photograph with that of D1 and found that they matched.

56.  Mr Cheng noticed that when he asked D1 to wait she took a seat at which time there was a man next to her and the two of them communicated with each other.  Mr Cheng explained that he only saw eye contact and could not say whether they actually spoke to each other.  Apart from this Mr Cheng did not see the male do anything else.  Mr Cheng was shown four photographs (exhibit P1C-F) taken from a CCTV and said in answer to the court that the male in the white shirt seen to follow D1 was the male he referred to as having eye contact with D1. 

57.  Mr Tracy submits that D2’s presence at the bank was not accidental(see for example entries 737-768 & 886-903, exhibit P29 and358-364, exhibit P31) and therefore by his presence D2 wilfully encouraged the commission of the offence by D1.  Mr Tracy also relies on D2 being present when D1 attempted to use one of the ATM cards (see entries 739-814, exhibit P29 and entries 184-255 & 553-581, exhibit P31).  Looking at the interviews together what D2 appears to be saying is that he went to the HSBC bank once with D1 when she tried to use an ATM card to withdraw money and on the same occasion also presented the cheque.

58.  Mere presence at the bank knowing D1 is to use the stolen cheque is insufficient to amount to aiding and abetting the crime.  There must in my view be evidence showing D2 is ready and willing to help in anyway if required.  Although D2 admits going to the bank to get the money with D1 (see for example entry 942-943, exhibit P29) looking at the interviews as a whole nowhere does D2 admit that he in anyway directed D1 what to do; wrote anything on the cheque; or that he was to receive any of the money.  What D2 says is that he did not see D1 take the identity card of Mr Pok; did not touch the cheque; did not talk to D1 on the journey to the bank; D1 did not mention about how to use the cheque nor whether any money that was obtained would be shared; that he ignored D1 when she was signing on the cheque because he did not know what she was doing and did not say anything to her when she signed the cheque (see entries 326-334; 365-392 and 413-439, exhibit P31).  I also note there is no evidence D2 ever approached the counter. 

59.  Whilst suspicious D2 went as part of a joint enterprise with intention to share any money obtained all that D2 appears to be saying is that he agreed to accompany D1, his girlfriend, to the bank.  Further D2 did not have control over the defendant to stop her.  As he told the police once she made a decision nobody could stop her (see entries 418-421, exhibit P29).  Specifically with regard to the events in the bank D2 told the police that when D1 told her she had used the wrong identity card he paid no attention to D1 and told her to go but she said she would stay for a while (see entries 469-521, exhibit P31). 

60.  In my view without any evidence of D2 doing something positive with the intention of helping or encouraging D1 his voluntary presence at the bank is not sufficient to constitute encouragement and therefore aid and abet the crime.  D2 is given the benefit of the doubt and acquitted of charge 3.

61.  In these circumstances not only is there insufficient evidence D2 was a joint party to uttering the forged cheque but also insufficient evidence he received either the cheque or Mr Pok’s identity card.  The same equally applies to the ATM cards, presence at the bank being insufficient to draw the inference D2 received the ATM cards. 

Sony Ericsson Mobile phone (exhibit P9)

62.  PC 12692 (PW8) the arresting officer, searched D2 on arrest and in the Sham Shui Po police station but did not notice if D2 had a mobile phone in his possession. DPC 46618 (PW9) testified that in the afternoon of the 2 August DPC 33617 (PW11) had given him the Sony Ericsson mobile phone to check.  Later the same day DPC 46618 returned the mobile phone to DPC 33617.

63.  On the 3 August at 01:56-02:00 PC 12980 (PW23) acting on the instructions of ADO WSgt 18900 conducted a search on D2 at the Tsuen Wan police station.  PC 16942 (PW24) witnessed the search and input the particulars of D2’s prisoner property into the computer.  The details were printed out on Pol 39, “Detained Person Property Receipt” (exhibit P42), which was signed by PC 12980, PC 16942 and D2. The Sony Ericsson mobile phone is listed as item No. 8, which together with other property was sealed insidea tamper evident property envelope number CO819236.

64.  DPC 33617 was not asked any questions as to when and where he obtained the Sony Ericsson mobile phone and what he did after DPC 46618 returned the phone to him.  As noted earlier DPC 33617 was not aware at the time of arrest that the Sony Ericsson mobile phone was stolen in the burglary (see paragraph 38) and therefore the mobile phone was not shown to D2 during the two video interviews conducted that night (exhibits P29 & P30) or the video interview on the 3 August (exhibit P31).

65.   On the 21 August the mobile phone was, in the presence of D2, taken out from D2’s prisoner property in Lai Chi Kok by DPC 33617 and DSgt 46293 (PW14) after which a video interview (exhibit P32) was conducted.  By reference to entries 103/104 of the interview it can be seen the mobile phone was taken out of tamper evident property envelope number CO819236.  The mobile phone together with the battery and SIM card were then sealed in a new tamper evident property envelope number B1319505, in which the phone is produced to court.

66.  Notwithstanding the absence of evidence as to the circumstances DPC 33617 came into possession of the mobile phone on the afternoon of the 2 August and what he did with the mobile phone after DPC 46618 returned the mobile phone to him I am nevertheless satisfied the mobile phone was in the possession of D2 when he was arrested.I accept the evidence of PC 12980 and PC 16942 that the mobile phone was in D2’s possession when he was searched in the early hours of the 3 August.  I note at no time was any allegation put to any police officer, including DPC 33617, that D2 was not in possession of the Sony Ericsson mobile phone when arrested.  Further in the video interview D2 admits possession of the Sony Ericsson mobile phone which he says was given to him by D1 on the 27 July (see for example entries 103-131; 187-214; 475-476; & 545-552, exhibit P32).

Video interview

67.  In the video interviewD2 explained how he came into possession of the mobile phone.  In summary D2 said that the Sony Ericsson mobile phone belonged to D1 and that he first saw the mobile phone being held by D1 when he went to D1’s home in the afternoon of the 20 July.  On the 27 July D1 gave D2 the Sony Ericsson mobile phone, which he used to make 10 plus phone calls.  D2 kept the mobile phone until his arrest by the police (see for example entries 132-156; 187-266; 297-348; 469-476; 545-555 and 732-760). 

68.  Reference is also made to D2’s Samsung mobile phone being out of battery and left on charge at D1’s home; D1 asking to use the SIM card in D2’s Samsung mobile phone which was then put in the Sony Ericsson mobile phone; and the Sony Ericsson mobile phone later being given to D2 because he had no phone to use.  At first D2 says the SIM card was given to D1 on the 20 July but later says his phone was not out of battery that day.  At the end of the interview D2 again says this was on the 20 July (see entries 132-156; 247-255; 290-294 & 732-760).

69.  I note when interviewed on the day of arrest D2 had mentioned about the Samsung mobile phone being left on charge in D1’s home (see entries 686-703, exhibit P30).  Further that the Samsung mobile phone was found in D1’s home and was confirmed to have been lent to D2 by Madam Li Junrong (see witness statement, exhibit P34A)

70.  Unlike the earlier video interviews in which D2 said he was told the items on the floor were from burglary D2 says he did not know where D1 got the Sony Ericsson mobile phone from; he did not ask her and she did not tell him (see for example entries 157-186; 268-276; 469-506 and 704-719). 

71.  In considering the interviews I attach no weight to entry 201 “Yes, stolen” as implying D2 knew or believed the mobile phone was stolen.  This is clearly inconsistent with everything else D2 says in the interview. 

72.  I am satisfied full weight is to be attached to the admission that D1 gave D2 the mobile phone, which phone he had seen earlier in D1’s home.  However I place no weight on D2’s explanation given in the interview that this was on the 20 July and that he did not know or believe the mobile phone was stolen property.  I do not find the explanation credible.

73.  The assertion D2 went to D1’s home on the 20 July is inconsistent with what D2 said in the earlier video interviews.  In the first interview (exhibit P29) after denying he committed the burglary D2 was asked where he was on the morning of the 19 July.  D2 said he was sleeping at the home of D1 (see entries 247-273) having gone there around 5-6 p.m. on the 18 July (see entries 358-371). 

74.  D2 goes on to say in the early hours of the morning of the 19 July he was the only one at D1’s home (see entries 346-357) D1 having gone out around 1-2 a.m. to burgle (see entries 376-425).  At five something D1 returns carrying a bag.  D2 goes back to sleep and in the morning sees goods placed on the floor including a computer, iPhone, and cheque which he knew were obtained by burglary (see for example entries 432-518).  In the course of the interview and the next interview (exhibit P30) D2 was shown all the items particularised in the charge except the Sony Ericsson mobile phone and confirmed he had seen all these in D1’s home on the 19 July.

75.  Nor do I find credible D2’s explanation for this inconsistency.  When asked about this inconsistency in the video interview D2 explained that when giving the first interview he did not clearly remember the date but now recollected it was on the 20 July that he went to D1’s home and that at that time he did not notice whether the Sony Ericsson mobile phone was on the floor (see entries 496-506, exhibit P32). 

76.  D2’s explanation in the earlier interviews as to the events on the 18/19 July was detailed and specific.  I do not accept D2 made a mistake over the date when giving the first video interview (exhibit P29).  I am satisfied full weight is to be attached to the admission in this interview that on the morning of the 19 July D2 saw in D1’s home the property obtained in the burglary of Madam Chan and Mr Pok’s home and knew the property had been obtained from burglary. 

77.  The significance of this time is that this is very close to the actual time of the burglary, only hours later.  Taking into account that D2 saw the mobile phone the same morning as the burglary at a time when he saw other property stolen from the burglary and that he later took possession of the mobile phone I am satisfied the only inference to draw is that D2 knowing or believing the Sony Ericsson mobile phone to be stolen goods dishonestly received the mobile phone. 

78.  Even if the dates are a mistake D2 saw the mobile phone around 36 hours after the burglary at a time when he also sees other property stolen in the burglary, property he was aware was stolen in a burglary.  In these circumstances, equally, I am satisfied the only inference to draw is that D2 knowing or believing the Sony Ericsson mobile phone to be stolen goods dishonestly received the mobile phone.

79.  In addition considering D2 was aware D1 had committed other burglaries, some in the same month of July (see for example entries 410-420 & 476-480, exhibit P29 and 850-1094, exhibit P30) I am satisfied the only inference to draw is D2 believed the Sony Ericsson mobile phone was the proceeds of burglary.

80.  In reaching my verdict I have carefully considered the submission of Mr Andrews. Nothing said by Mr Andrews causes me to doubt the only inference to draw is that D2 knowing or believing the Sony Ericsson mobile phone to be stolen goods dishonestly received the mobile phone.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  

81.  D2 is jointly charged with handling the stolen goods with D1.  In my view the handling of the Sony Ericsson mobile phone by D1 between the 19-27 July and the handling by D2 on the 27 July to the date of arrest are separate instances of handling the same phone.  By virtue of section 29(2) of the Theft Ordinance where on the trial of 2 or more persons charged for jointly handling any stolen goods a court may find any accused guilty of all or any of the goods, whether or not he did so jointly with the other accused.

82.  Having carefully considered all the evidence I am satisfied so I am sure the prosecution have proved all the elements of charge 1 beyond reasonable doubt in respect of the Sony Ericsson mobile phone (exhibit P9).  D2 is convicted of handling the Sony Ericsson mobile phone and acquitted in respect of the remaining goods particularised in the charge.  D2 is also acquitted of charge 3.