HKSAR v. UL OLDOKH ODGEREL AND OTHERS

DCCC 476/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 476 OF 2013

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Reasons for Verdict

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1.  The five defendants were charged with two counts of theft. They pleaded not guilty to the charge. The trial lasted for nine days. Here are the reasons for verdict.

The Prosecution case

2.  The gist of the prosecution’s case is that all five defendants are Outer Mongolians.  They attended the Hong Kong International Jewellery Show (“the Show”) held at the Hong Kong Convention and Exhibition Centre (“HKCEC”).  It was alleged that on 5 March 2013 the defendants went to one jewellery exhibition booth and stole 10 diamonds worth about HK$156,000-odd.  On the same day they stole a coral chain and 30 coral beads with the total value of about HK$538,000-odd from another jewellery booth in the Show.

3.  All parties admitted the following facts, pursuant to Section 65C of CPO, Cap.221:

(1) at 3:55 pm on 7 March 2013, PC 54153 (PW8) and PC 58224 (PW9) arrested D1 and D4 respectively at the staircase on the 16th floor of Mirador Mansion, Tsim Sha Tsui;

(2) at 2:45 pm on 7 March 2013, PC 58963 (PW10) arrested D3 outside Room A-10 in the common corridor of the 16th floor of Mirador Mansion;

(3) at 4:48 pm on 7 March 2013, PC 58490 arrested D2 in Kimberly Street near Shun Yee Street, Tsim Sha Tsui;

(4) at 3:19 pm on 8 March 2013, PC 13488 arrested and cautioned D5 at the Hong Kong International Airport when she was leaving Hong Kong for Mongolia;

(5) D5 entered Hong Kong via Lo Wu at 11:51 pm on 28 February 2013;

(6) D2 entered Hong Kong via Lo Wu at 11:54 pm on 28 February 2013;

(7) D1 and D4 entered Hong Kong via the Hong Kong International Airport at 12:33 am on 3 March 2013;

(8) D3 entered Hong Kong via the Hong Kong Airport at 12:38 am on 3 March 2013;

(9) telephone records showed that between 1 March 2013 and 7 March 2013, D1 and D3 called each other seven times, D1 and D5 called each other once; D2 and D3 called each other 11 times; D2 and D5 called each other 37 times; D3 and D4 called each other 15 times; and D3 and D5 19 times.

(10) the Hong Kong International Jewellery Show (“the Show”) was held at the Hong Kong Convention and Exhibition Centre (“HKCEC”), No. 1 Harbour Road, Wanchai, from 5 to 9 March 2013.

(11) the CCTV camera at the Show captured D1, D2, D3 and D5 entering Hall 3F of the HKCEC (photo 15 and 16 of P163) and D4 entering Hall 3F on 5 March 2013 (photo 17 of P163) and all five defendants thereafter at Booth E29, Hall 3F, 3rd floor of the Show (Exhibit P1). It captured D1, D2, D4 leaving Hall 3F (photo 18 of P163) and D3 and D5 leaving (photo 19 of P163) on 5 March 2013;

(12) the registration records of HKCEC revealed that each of the defendants had only been to the Show on one occasion, that is, on 5 March 2013 (Exhibit P7);

(13) Fingerprint examinations revealed:

(i) that impressions lifted from a diamond certificate recovered from inside a plastic bag (containing, inter alia, one of the diamonds, P40) which was found inside a handbag placed inside the suitcase of D3 in Room B, A-12, 16th Floor, Mirador Mansion, matched with D5’s (P39 and P159 and 160);

(ii) that impressions lifted from a blue wrapping paper recovered from inside a plastic bag (containing, inter alia, one of the diamonds, P28) which was found inside a handbag placed inside the said suitcase of D3, matched with D5’s (P26 and P159 and 160);

(iii) that impressions lifted from the plastic bag (containing, inter alia, one of the diamonds, P67), was found inside the said suitcase of D3, matched with D5’s (P62, P159 and 160);

(iv) that impressions from a business card attached to the buyer’s registration form of D1, which was recovered from HKCEC (Exhibit P2), matched with D5’s (P159 and 160);

(v) that the impressions from a business card attached to the buyer’s registration form of D5, which was recovered from HKCEC (Exhibit P6), matched with D5’s (P159 and 160);

(vi) that impressions from a business card attached to the buyer’s registration form of D2, which was recovered from HKCEC (Exhibit P3), matched with D2’s (P153 and 154);

(vii) that impressions from a business card attached to the buyer’s registration form of D3, which was recovered from HKCEC (Exhibit P4), matched with D3’s (P155 and 156);

(viii) that impressions from a business card attached to the buyer’s registration form of D4, which was recovered from HKCEC (Exhibit P5), matched with D4’s (P157 and 158).

(14) D2 and D5 took part in the video recorded interview (“VRI”). The VRIs with transcripts were exhibited and marked as P119, P119A (for the transcripts); P120, P120A; P137, P137A and P138 and P138A;

(15) on 6 March 2013 the police took seven photographs of Booth E29 at Hall 3F, 1st Floor, of the HKCEC (P161, photo album A);

(16) on 8 March 2013 the police took 18 photographs of Booth DO2 at Hall 3C of the HKCEC (Exhibit P162, photo album B);

(17) on 6 March 2013 the police retrieved 19 photographs from the CCTV footage of the HKCEC (Exhibit P163, photo album C);

(18) on 20 June 2013 the police retrieved 12 photographs from the CCTV footage of Booth E29 at Hall 3F of the HKCEC (P164, photo album D);

(19) on 7 March 2013 the police took 28 photographs at Room B, A-12, 16th Floor, Mirador Mansion, Nathan Road (Exhibit P165, photo album E);

(20) on 7 March 2013 the police took 10 photographs inside Room B, A-12, 16th Floor, Mirador Mansion (P166, photo album F);

(21) on 26 March 2013 the police took 47 photographs at the studio of the Identification Bureau of the police headquarters (P167, photo album D);

(22) after the conclusion of the second VRI of D1 on 8 March 2013, D1 was escorted to the Queen Mary Hospital for medical treatment. The related medical report is exhibited as DP1;

(23) each of the five defendants has a clear criminal record in Hong Kong.

4.  The prosecution called a total of 15 witnesses.

5.  Counsel indicated that the alternative procedure would be adopted for their challenges to the admissibility of the respective VIRs relating to D1, D3 and D4. 

PW1 Zhang Lai-shan

6.  She worked for Motti Kahana Diamonds.  At about 8 am on 5 March PW1 attended Booth E29 at the lobby of the 3/F.  She identified the setup as depicted in the photos at photo album A, P161.  She put the jewellery in the display boxes and kept the boxes locked.  Diamonds of less than one carat were kept in a transparent bag together with its GIA certificate.  For those over one carat, they would be kept in cases. 

7.  At about 1:30 pm on the day, PW1 remembered that several women came to her counter and asked to see the list.  They also asked questions about the diamonds.  PW1 tried her best to explain to them in simple English, as the women were not speaking Putonghua or English.  PW1 identified herself from the still photos of the album D.  PW1 was standing inside the booth while a number of ladies were at the display shelf case.  PW1 gave them some lists which were placed on the shelf case.  The group of ladies did not buy anything.  At about 3 pm PW1 found out that about 10 diamonds worth about US$20,100-odd were missing.  These diamonds have their respective GIA certificates and the company label.  Each diamond has its unique number which was created by laser.  After viewing the footage of the CCTV, PW1 found the group of ladies suspicious.  She called the police.

8.  On 8 May 2013 PW1 went to Wan Chai Police Station and was shown seven diamonds, out of which six have GIA certificates. There was one diamond that was not the property of PW1’s company.  PW1 confirmed that six diamonds are her company’s property.  When asked about the gist of the conversation with the group of ladies, PW1 said they asked about the price of the diamonds.  It was mainly the two ladies who talked to PW1. 

9.  Under cross-examination by counsel for D1, PW1 said she was a part-time sales staff of the company.  The group of ladies stayed at the display shelf for about five minutes.  PW1 said once she took out the diamonds from the display shelf, she would usually lock up the shelf.  There were about 300 to 400 diamonds in the shelf that PW1 manned.  She admitted that she had communication problems with the ladies, but the lady on the right as shown in the still photo spoke more English.  The booth opened for business till about 6 to 6:30 pm on the day.  There were over 30 customers after the group of ladies left.  The lady who talked to PW1 is taller than PW1 and is about 160 cm and aged about 40 to 50.  She looked at the registration badge that the lady was wearing.  It shows the nationality of the bearer is Mongolia.

10.  Under cross-examination by counsel for D2 and D5, PW1 said when the group of Mongolian ladies came, they asked PW1 to show them the certificates.  She took out the certificate from the plastic bag. Usually she would keep the diamond which was wrapped in paper in the plastic bag.  PW1 could not recall if she had shown the group the diamonds.  PW1 said usually if customers wanted to inspect the diamonds, she would invite them to sit at the table inside the booth.

11.  Under cross-examination by counsel for D3, PW1 said she had lunch between 1 pm and 3 pm.  She took out the GIA certificate from the plastic bag which contained one diamond.  Normally she would hold the diamond in her hand.  PW1 was not sure if she had shown the diamonds to those Mongolian ladies.  As far as PW1 could recall, she did not show them diamonds. At that time, there were three other customers inside the booth.  After the Mongolian lady viewed the GIA certificate, PW1 put it back to the plastic bag and then locked the display shelf.

12.  Under cross-examination by counsel for D4, PW1 maintained that she probably did not show them diamonds.  One of the ladies did ask her some questions about the list.  The other lady interacted with her. The lady spoke some simple English and some Putonghua.  There were three staff members including PW1 manning the booth.

13.  When asked, PW1 said the list is written in English with numbers and it shows the grades of those diamonds on display.  One of the ladies looked at the list and asked for a particular certificate.

PW2 Sung Man-kuen

14.  She worked for Famous Group since 2008 as the administrative sales manager.  Her company sold coral  beads and some semi-finished products with the registered trademark CIMMIO.  The company took part in the Show, occupying three booth areas in Booth D02 at Hall 3C.  She identified the setup of the booth from album B.  They displayed the products in the shelf but did not lock it.  On 7 March they realised that one coral chain of 17-mm long worth about US$68,800-odd was missing.  At first, they did not make a report to the police as it was not confirmed.  Eventually they discovered 30 pieces of 7-mm round beads valued at about US$251 were missing too.

15.  Under cross-examination by counsel for D1, PW2 said she did not conduct stocktaking inside the booth on the day but did so beforehand.  She did not know if the coral chain (Exhibit P54) was on display as she was occupied with other duties.  Regarding the coral beads (Exhibit P55), that was the only packet of 16 gramme on the stock list.  She could not tell if P55 was on display too as there were many other similar products.  On 5 March she attended the booth from 9 am to 7 pm and there were many customers.  When the booth was closed on the day, she did not conduct any stock check.

PW3 Chow Cheuk-yiu

16.  He was the assistant project manager of the Trade Development Council (TDC) since 2011.  His main duty was to assist TDC in hosting exhibitions, in particular, buyers’ registration.

17.  All attendees of the Show were required to register before entering the venue.  The Show was held from 5 to 9 March 2013 and each buyer was required to show his or her identification document.  The buyer was also required to present his or her business card to show that they were in the jewellery or jewellery trading business.  They paid $100 for the registration.  Each buyer or attendee would be given a badge which shows the buyer’s name, country of origin and a bar code.  The bar code would be scanned when the buyer entered the exhibition hall but there was no scanning when they left.

18.  The buyer or attendee was required to sign the registration form, and colleagues of TDC would then staple his or her business card to the registration form.  PW3 identified the registration form of D1 to D5 as P2 to P6, and their respective business card as P2A to P6A.  The purpose of attaching the business card to the form is for keying in the information shown on the business card into the computer and for record purpose.  PW3 was not sure if the particulars in the form were filled in by the TDC staff or by the buyer.  The staff would also check the identification.

19.  Exhibit P7 is the entrance or movement record of all five defendants in the show on 5 March 2013.  This record was generated by computer when the buyer or attendee passed the checkpoints of a section or zone in the Show.  The bar code on the badge was scanned.  For each scanner checkpoint, there were about two to three temporary staff with hand held scanner.  The buyer was required to show the registration badge before entering a section in the Show.

20.  Each exhibition has its own codename and “Number 23” means “jewellery show”.  The buyer could make the registration online in advance or just walk in.  Each buyer would then be assigned a unique registration number.  Entrance to Hall 3C was assigned the number 65.  From the record, all five defendants entered the Show only on 5 March.

21.  Under cross-examination, PW3 agreed that the dates appeared on the columns in the annexure to the entrance record P7 were wrong and it should read “5 to 8 March 2013” instead of “5 to 8 February 2013”.  The title of the annexure reads “HK TDC HK International Jewellery Show 2013 [Project ID: 23], 5-9 March 2013”.  The table showing the locations of vary checkpoints and its numbers was prepared by PW3’s colleague.

PW4 DPC 33893 Li Chung

22.  At about 5:15 pm on 7 March 2013, PW4 and his colleagues went to Room A-12, 16th Floor, Mirador Mansion to arrest D1, D3 and D4.  These three defendants were identified in court.  PW4 conducted a room search and found a number of jewellery items in a black suitcase (Exhibit P20, photo 6 to 9 of album F). The black suitcase belonged to D3.  PW4 asked D3 who provided the lock code to him.

23.  PW4 communicated with D3 in simple English, but D3 told PW4 the lock code in Putonghua.  Before D3 revealed the lock code, PW4 used a ball pen to unzip the suitcase.  Inside the suitcase, PW4 found a blue handbag (Exhibit P21) in which a purse (Exhibit P22) was located.  PW4 found five diamonds (Exhibit P28, P34, P40, P46, P52) in a transparent plastic bag. GIA certificates were enclosed too.  The diamonds were wrapped in two pieces of coloured paper.  PW4 recovered another diamond (Exhibit P67) and the GIA certificate (Exhibit P66) in another compartment inside the suitcase after D3 told him the lock code being “000”.  PW4 also recovered one chain of coral bead (P54) and 30 coral beads (P55) inside the suitcase.  The latter two coral beads items bear the trademark “CIMMINO”.  PW4 found a name card case (Exhibit P56) and two name cards in D3’s name (P57). The police also found a buyer badge which was related to an exhibition held in China (Exhibit P17, see photo 9 of album F).  PW4 also noticed there was a sticker in D3’s name from the airport or airline (see photo 28 of album E).  PW4 recalled that when he asked D3 if the suitcase was hers, D3 nodded.

24.  PW4 also found D4’s green rucksack with a tag in D4’s  name (P74) inside which a black bag (Exhibit P75) and a guide map of the Show (P78) were located.

25.  Under cross-examination, PW4 found the black suitcase at bed B as shown in the sketch P152.  When PW4 arrived at Mirador Mansion, D1, D3 and D4 were sitting inside Room A-10 on the 16th floor.  PW4 did not say anything to the defendants.  He stood outside Room A-10 waiting for instructions from Station Sergeant Chan.  Then the party proceeded to Room A-12.  The three defendants had checked out the room already.  The police used the key provided by the principal tenant Tso Ching-ping to open the door of A-12 and conducted a room search in the presence of all three defendants.  PW4 asked D3 in simple English in front of all three defendants whether the suitcase (P20) was D3’s.  D3 did not say anything but nodded.  PW4 was of the view that D3 could understand simple English.  PW4 learnt from the principal tenant that they were able to communicate in simple English and Putonghua.  D3 said in Putonghua the lock code of the suitcase.  D3 did not say anything at the scene.  PW4 also found clothes and trousers in the suitcase.

26.  PW4 also asked D4 if the bag was hers.  D4 nodded.  PW4 searched the bag and found a number of jewellery items, rings and chains which are not related to the present case.  PW4 denied that he saw D4 trying to talk to D1.  D4 was sitting on the bed and did not move.

PW5 Cimmino Claudio

27.  He was the managing director of Famous Group, an Italian company manufacturing gemstones and coral items.  He took part in the Show in Hong Kong.  He identified the coral chain (P54) as the property of his company.  The chain is quite rare in the market and worth about US$68,000-odd. PW5 recalled that the coral chain and 30 pieces of the 7-mm coral beads, which have a net weight of 60 grammes and worth about US$251, were on display on day one of the Show.  The display shelf cases were not locked.  PW5 realised the items were stolen on the second day.

28.  Under cross-examination, PW5 said they have about four to five staff members to put the jewellery items in the Show.  They checked the display items before the Show.  They have three booths in one location.  At the close of the day on 5 March, PW5 did not know the said jewellery items were missing.  PW5 agreed that the coral chain P54 is relatively expensive.  PW5 and his staff categorised the items and some of the beads were hung on the wall.  PW5 was able to confirm the said jewellery items missing on 6 or 7 March.  The matter was reported to the police on 7 March.

PW6 WDPC 9141 Mui Hau-yee

29.  She joined the Force in 2008.  She went to Room A-10 of Mirador Mansion at about 5:40 pm on 7 March.  She identified D1, D3 and D4 in court. She conducted body search on these three Mongolian ladies inside Room A-10.  PW6 found six pieces of D1’s name cards (P19) and eight pieces of D4’s name cards (P89) on D1 and D4 respectively.  PW6 compared the name cards with those stapled to the buyer’s registration form in D1’s name (P2A) and D4’s name (P5A), and concluded that they are the same.

PW7 Tso Ching-ping

30.  Room A-10 on the 16th floor Mirador Mansion was the reception area of the guesthouse that she operated. On 3 March 2010, three ladies and one man came to her guesthouse to rent a suite.  PW7 communicated with them in Putonghua and English.  The rental was $350 per day and they rented a room for three to four days.  PW7 identified the photos of album E and said she rented Room A-12 to the lady and the man.  One of the ladies paid the rent of about $1,200.  They did not get the receipt.

31.  Under cross-examination, PW7 said she lived in Room A-10.  The unit A-12 has four subdivided rooms:  Room A to Room D.  She was told by a security guard of the building that two Mongolians were arrested by the police on the rooftop.  She let the door of A-10 open all the time and all customers could come in and sit inside the room.  The police officers in plainclothes entered A-10 with three ladies.  The officers forced her to open the door of A-12.

PW8 PC 54153 Chan Po-wa

32.  He joined the Force in 1993.  On 7 March 2013 he was in plainclothes and was on patrol duty with PC 58224.  At about 3:35 pm they patrolled to the rear staircase on the 16th floor of Mirador Mansion, which leads to the rooftop of the building.  They saw two women sitting on the staircase.  PW8 identified D1 and D4 in court.  PW8 revealed his police identity by showing his police warrant card.  He used simple English to ask them for their passports.  D1 and D4 showed their passports.  PW8 saw both of them were scared and their hands trembling.  PW8 could not communicate with them as they seemed to speak Mongolian language. PW8 contacted his team leader Sergeant 45226 requesting for assistance.

33.  At about 3:50 pm, Sergeant and WPC 9994 came to the scene.  The woman constable gave PW8 some documents about a theft case in Wanchai.  Passport numbers were mentioned in the document and the numbers matched with the passport numbers shown by D1 and D4.  PW8 later used simple English to arrest D4.  D4 did not respond.  His partner PC 58224 arrested D1.  PW8 denied he or his colleagues ever threatened to beat the defendant.  Later PW8 and Sergeant went to conduct a sweeping operation in the building.

34.  At a later stage, PW8 and PC 58963 saw a woman in the corridor on the 16th floor.  She walked in haste and entered a room.  PW8 noticed the room was the reception of Wing Shing guesthouse.  That woman was arrested by PC 58963 outside Room A-10.   

35.  Under cross-examination, PW8 said that he saw the two Mongolian ladies at the staircase on the 16th floor.  PW8 showed his police warrant card by holding the warrant card in his hand and said, “Police,” in English.  PW8 also asked the ladies to show him their passports.  At that time the ladies looked scared and their hands trembling.  PW8 only knew about the occurrence of a theft in HKCEC but not the nature thereof.  PW8 allowed D1 and D4 talk in their own language while being guarded.

36.  PW8 has almost 20 years of experience.  He did not consider necessary to stop the defendants talking even though they talked in a language that PW8 does not understand.  D1 did not speak English in PW8’s presence but just shook her head to indicate that she did not understand.  From his own experience, PW8 knew that most Mongolians he encountered in Hong Kong could speak simple English.  He used simple English to explain why he arrested the defendant.  He strongly believes that the defendants understand simple English. PW8 agreed that there was a possibility that D1 did not understand English, but it would be the same if PW8 spoke to her in Cantonese.  PW8 takes the view that even if the defendant did not speak English, it does not mean she could not understand English.  PW8 got the case file from WPC and subsequently PW8 could confirm that D1 and D4 were the wanted persons, but they still allowed the defendants to talk.  PW8 denied any officer raised his right elbow in front of D1 and threatened the latter.  D1 and D4 took out their passport from their handbags respectively. PW8 denied the defendants were handcuffed.

37.  PW8 took the lift from ground floor to 16th floor of Mirador Mansion.  Later PW8 and his partner went to the rear staircase on the 16th floor and saw the two defendants.  They guarded the two defendants at the staircase for about an hour.  There was no other people near the staircase at the time and he could not see other people in the corridor.  He saw the third lady carrying a handbag in the corridor.  That third lady was arrested by PC 58963.  Later WPC 4592 in plainclothes searched the third lady inside Room A-10.  PW9 did not handcuff D4 in Room A-12.  PW8 could not recall if all three defendants were talking inside Room A-12 when the room search was conducted.

PW9 PC 58224 Kwong Yee-ping

38.  He joined the Force in 1997.  He had a briefing at 11 am on 7 March 2013 and then partnered with PC 54153 to patrol.  When they reached the rear staircase on the 16th floor of Mirador Mansion, they found D1 and D4 sitting on the staircase.  He found the appearance of these two women matched with the descriptions mentioned by the Sergeant in the briefing.  PW9 revealed his police identity and asked them in English to produce their identity documents. Each of them then produced their Mongolian passport.  At about 3:50 pm, Sergeant and WPC 9994 arrived and the latter brought with her some crime information.  When the information was confirmed, PW9 arrested D4.  D4 did not respond.  Later he learnt that PC 58963 arrested another Mongolian lady outside Room A-10 on the 16th floor.  PW9 denied he threatened any of the defendants in any way.  He stood outside A-12 when the room was searched.  He did not handcuff D4.  He pointed at the defendants’ handbag and asked them to hand over their handbags for making a search.

39.  Under cross-examination, PW9 said at 4:55 pm he was instructed to take D1 and D4 to Room A-10 of Wing Shing Guesthouse.  He allowed D1 and D4 talking to each other in his presence.  PW9 denied any officer in his presence had threatened D1.  Before the arrival of the Sergeant, PW9 and his colleague checked the defendant’s handbag and then allowed them to hold their handbag.  The Sergeant stayed at the staircase for about 15 minutes and he went with PC 54143 to conduct the sweeping operation.  The defendants were allowed to talk freely.  PW9 did not notice any blood on D1’s handbag nor was he aware that D1 was having period.

40.  When they saw the two defendants at the staircase, PW9 said to them words to the effect:  “Police, show me your passport.”  PW9 did not notice that D2 tried to talk to D1 inside Room A-12 when the room search was conducted.  PW9 did not see any officer trying to threaten D4.

PW10 PC 58963 Wong Chung

41.  He joined the police in 1998.  At about 4:45 pm, PW10 saw D3 in the corridor of the 16th floor of Mirador Mansion.  D3 was carrying a brown bag and went to Room A-10.  PW10 followed and inside Room A-10, PW10 revealed his police identity. PW10 told D3 to go outside the room for investigation.

42.  At first, PW10 spoke in Cantonese and later changed to simple English.  PW10 asked her to show her document, and D3 took out her Mongolian passport from her handbag.  PW10 found the particulars in the passport matched with those information from the crime message relating to a theft case in Wanchai. PW10 declared arrest on D3 for the theft case committed on 5 March at HKCEC. D3 did not say or do anything in response.  Room search at A-12 was finished at about 6:55 pm. All along, PW10 was outside the room and denied that he threatened the defendant in any way.

43.  Under cross-examination, PW10 went to 16th floor of Mirador Mansion alone.  He did not go there with the Sergeant.  At that time he did not see any other colleagues.  PW10 contacted PC 54153 by phone.  They stayed on the 16th floor to conduct the sweeping exercise.  At about 4:45 pm, PW10 saw D3.  From his experience, PW10 knows that most Mongolians he encountered in Hong Kong know simple English. PW10 believed that D3 understood what he said when he revealed his police identity.  PW10 even proceeded to search D3’s handbag.  Then all three defendants were brought to Room A-10 and then Room A-12.  While the three defendants were inside Room A-12, PW10 could not remember if they talked to each other.

PW11 Sergeant 45226 Lee Ping-kwong

44.  On 7 March, PW11 gave a briefing to a party of police officers.  Later at about 3:50 pm, PW11 and WPC 9994 went to Mirador Mansion to give assistance to two police officers.  PW11 met them at the rear staircase on the 16th floor.  PW11 instructed WPC to pass the crime message files to PC 54143.  The officers checked the passports of the two Mongolians and confirmed their identity.  Subsequently, the two ladies were arrested.  Later, PW11 left the scene with PC 54153.

45.  Under cross-examination, PW11 said that there was no mention of communication problems when the officer called him for assistance.  He was asked to provide crime alert information so as to confirm if the two Mongolian ladies were implicated in the theft case.  PW11 has the impression that the Mongolian ladies were able to communicate with his colleagues in simple English.  The Mongolian ladies were allowed to talk to each other.  At that time, PW11 was the most senior officer at the scene.  He noticed that when his colleagues asked the Mongolian ladies to sit down, the latter did.  Their facial expression, their gesture and reaction indicated that the Mongolian ladies understood what the officers said to them.  The ladies were cooperative and sat down on the staircase when told.  PW11 did not enquire if there was any communication problem with the Mongolian ladies and they were not handcuffed.

PW12 WPC 9994 Wong Ka-yee

46.  She joined the Force in 2009.  At about 3:30 pm on 7 March, she went with Sergeant 45226 to 16th Floor, Mirador Mansion, and met two officers and two Mongolian ladies.  PW12 could only identify D1 in court.  She brought along some crime message files.  Later, her colleagues declared arrest, in simple English, on the two ladies.  PW12 was in plainclothes.  She denied she had raised her right elbow to threaten D1 or D4.  At that time, PW12 was having longer hair up to her shoulder.

47.  Under cross-examination, PW12 said she did not tie up her hair when she was in plainclothes duties.  When she was guarding the two ladies, they were sitting next to each other on the staircase.  She allowed the two Mongolian ladies talked to each other.  She did not see any problems with that.  She conducted search on the ladies’ handbags.  PW12 did not aware that D1 was given a lady sanitary at the police station.  PW12 repeated that D4 was not handcuffed.

PW13 DPC 34099 Leung Pak-hang

48.  He joined the Force in 1995.  On 7 March, PW13 was tasked to conduct a VRI with a Mongolian lady.  PW13 could not identify that lady in court.  It was agreed that it was D1.  A Mongolian interpreter was also present in the VRI and that interpreter explained the content of the notice Pol 153 (Exhibit P110) to D1.  The communication between PW13 and D1 was through an English interpreter and then a Mongolian interpreter.  PW13 said D1 did not tell him that she was not feeling well and had a headache and fever. D1 did not make any request.  After the interview, D1 signed the receipt, P113.  At about 4:27 pm, PW13 conducted another VRI with D1.  He did not issue another Pol 153 to D1 as that was issued earlier on.  This time, Sergeant 9673 was present.  After the interview, D1 was given a copy of the DVD and she signed the receipt, P117.

49.  PW13 also conducted VRI with D2 (Exhibit P119) with similar procedure.  PW13 did not know that D1 was taken to the hospital after the interview.

50.  Under cross-examination, PW13 denied that in the second VRI, he needed Sergeant’s instructions as to when to stop the interview.  PW13 said although D1 did mention that that she had a fever, she said she could continue with the interview.  PW13 maintained that he informed D1 that she could stop the interview any time.  PW13 said D1 did not look unwell during the interview.  D1 should know her rights before the interview as the interpreter had told her the content of Pol 153.  Throughout the first VRI, D1 did not mention that she was feeling unwell.

PW14 Detective Sergeant 9673 Chan Man-cheong

51.  He was involved in one of the VRIs with D1. During the interview, PW14 was not aware that D1 was not feeling well.  PW14 agreed that D1 did mention that she had a fever in the interview.  After the interview, PW14 arranged D1 to seek medical attendance.  PW14 recalled that D1 was wearing a black jacket which is quite thick.  It was not that cold on the day.

52.  On 8 March, PW14 and WDPC 3229 were involved in conducting the VRI with D4.

53.  Under cross-examination by counsel for D1, PW14 said he was only involved in the second VRI with D1.  During the interview, D1 mentioned that she had a fever and she wanted to finish the interview quickly and then to seek medical attention.  PW14 maintained that if D1 really had problems at that time, he would stop the interview immediately.  But D1’s answers were smooth.  PW14 had no clue how long the interview would be as sometimes it also depends on the answers given by the interviewee.  PW14 did pay particular attention to D1’s condition.  He told D1 that if she was not okay, she should tell him.  PW14 was of the view that if D1 did not understand the questions, she would not answer them.  On a number of occasions, D1 did ask what the question was.  PW14 did not agree that D1 had difficulty in understanding the questions put to her due to her physical condition.

54.  Under cross-examination by counsel for D4, PW14 said that before the interview, they had asked D4 if she was fit to be interviewed.  PW14 did not have a written record for that.  It was his practice to ask if the interviewee was fit for the interview before the interview started.  During the interview, D4 asked and was provided with lady sanitary pad.  The interview was stopped for a while.

PW15 WDPC 3229 Cheng Ka-man

55.  She joined the Force in 2001.  When the room search in Room A-12 of Mirador Mansion was conducted, PW15 was at the doorway. Later in the police station, PW1 conducted a VRI with D3.  She issued the notice Pol 153 to D3 (Exhibit P123).  PW15 found D3 was fit to be interviewed. She did not make any request for medical treatment.  After the interview, PW15 gave a copy of the DVD to D3 and the latter signed to acknowledge receipt (Exhibit P126).

56.  Later on 8 March, PW15 took D4 and issued the notice Pol 153 to her (Exhibit P131).  The VRI was conducted from 1813 hours to 2016 hours.  After the interview, D4 signed the notice of receipt (P135).

57.  Under cross-examination, PW15 said in early March this year, she was wearing a similar short hairstyle.  She was in plainclothes. She was not aware that another woman police officer was guarding two Mongolian ladies at the rear staircase on the 16th floor.  PW15 went to Room A-10 directly. She denied that before the VRI commenced, D3 had said she wanted to instruct a lawyer.  PW15 said if the interviewee refused to participate in the VRI, it can be done in an interview and the process be reduced into writing.  PW15 told D3 the options before the interview started.  D3 replied through the interpreter that she understood.  PW15 insisted that she had followed the procedures in administering caution to D3.  After the interview, PW15 took D3 to the duty officer who then arranged the defendant to see a doctor.  When PW15 arrived at 16th floor of Mirador Mansion, she was tasked to guard D4 who was not handcuffed.  PW15 said it was her normal practice to ask the interviewee if he or she was willing to take part in the interview before the interview commenced.  D4 said she was okay to be interviewed.

D1’s testimony on the special issue

58.  She was aged 41 and received education up to Form 7 of high secondary level in Mongolia.  At about 3:30 pm on 7 March, D1 and D4 were sitting at the rear staircase on the 16th floor of Mirador Mansion as they did not have the key to the guesthouse.  Two males approached them.  One of the males showed them something which the male was holding in his hand.  The males talked to them but D1 did not understand what they were talking about.  D1 had no idea of the males’ status.  D1 guessed they wanted to check her passport or visa as the male said “passport” many times.  D1 took out her passport from her from her waist bag.  The males pointed at D1’s handbag and then searched it.  D1’s waist bag was checked by a female at a later stage.  D1 recalled that she had her passport, name card, ATM card, $10, RMB$10,000 and Mongolian dollar $25,000 in her waist bag.  Then D1 was handcuffed from her back.  Later, four to five people came to the staircase.  One female officer checked D1’s clothes.

59.  D1 said she learnt Mongolian and Russian at school.  She did not learn Putonghua.  D1 was sitting on the staircase.  When she was about to ask D4 what was going on, one officer standing in front of D1 raised his hand and uttered a sound “Shh”.  D1 thought that man was going to hit her.  D1 felt scared.  About 10 minutes later, D1 found herself bleeding.  The people around here ignored her.  D1 sat on her handbag even though she was handcuffed from her back.  There was bloodstain on the staircase.  Later D1 and D4 were brought to the guesthouse.  Back to the police station, D1 was upset and given a lady sanitary pad.  D1 also mentioned that she got a sanitary pad at the guesthouse.  She took it and went to the toilet.

60.  Back to the police station, D1 had a fever and headache.   D1 did not tell the officer when the interview started because she was scared and shocked.  D1 was afraid that they might beat her up.  D1 just answered the questions put to her.  D1 repeated that she was shocked while the interview was conducted.  And if she did not answer the questions, they would threaten or hit her.  She put on her green jacket because she had a fever and headache.  D1 did not understand the questions but she answered them.  She felt unwell and wanted to finish the interview as soon as possible.  D1 thought she had to answer the questions.  She had a throbbing headache.

61.  Under cross-examination by counsel for the prosecution, D1 said she could not speak and understand simple English but she understands the word “passport”.  When shown D1’s name card (P2A), which is printed in English and Mongolian, D1 said the cards were given to her by someone.  Other people helped her to fill in the buyer registration form P2. She did not know that person.  When the male showed her the card, D1 insisted that she did not know he is a police officer.  She thought he wanted to check her visa and said, “Passport.”  D1 also said later she was wearing a hood, after the police finished the search.  D1 said she was handcuffed from her back.  She used a lady sanitary pad but could not put up her trousers.  She asked D4 for help.  D4 gave her a hand.  When D1 demonstrated the act, D1 showed that she was handcuffed in the front.  D1 said at first she was handcuffed from the back and later, after the room search, she was handcuffed in the front.  D1 said she took a piece of sanitary pad in the room where the police conducted a search, and went to the toilet.  As she could not put up her pants, D1 went out to the room and asked for D4’s help.  D1 said no one actually hit her, but an officer raised his hand and made her scared.  D1 was in panic and had a fever.  She signed the notice Pol 153.

62.  In re-examination, D1 said even at the time when she was handcuffed, she did not realise the males appeared at the staircase are police officers.  D1 was brought to the hospital.  D1 was shown the medical report (DP1) which was dated 27 August 2013.  D1 said she consulted a doctor with the aid of an interpreter over the phone.

Election of D3 and D4 relating to the special issue

63.  D3 and D4 elected not to give evidence.  Counsel for D4 tendered the medical report of D4 dated 30 August 2013 as DP2 under section 65B, CPO.

Ruling on the special issue

64.  It was alleged that D1 was threatened by a police officer in plainclothes, either a male or a female, at the staircase on the 16th floor of Mirador Mansion.  That officer raised his or her right elbow, threatening to beat D1 up.  D1 was frightened.  At the same time, D1 was suffering from headache and fever during the two VRIs and needed medical treatment.  It was alleged that the VRIs were conducted in an oppressive manner.

65.  Counsel for D3 amended the written objection by deleting “D3 was never told or explained her rights as a detainee before the said interview” and inserting “D3’s rights as a detainee were prejudiced by the conduct of the interviewer”.  D3 alleged that the VRI was conducted in an oppressive and unfair manner as the officer did not tell D3 that she had a right not to take part in the VRI and did not ask if D3 was fit to attend.  All in all, it was said D3 was acting under a feeling or belief that she was required to take part in the VRI and to answer the questions.

66.  D4 alleged that when the room search was conducted (in Room A-12), an officer in plainclothes threatened to beat D4 up and, because of the threat, D4 took part in the VRI.  During the interview, D4 was scared and felt uncomfortable.  As such, the interview was conducted in an oppressive manner.

67.  In HKSAR v Leung Chiu Ming [2001] 1 HKLRD 272, the Court of Appeal observed that when the applicant elected not to give evidence on the special issue, quite often it would deprive the court the chance of assessing the only source of evidence to support the allegations. 

68.  I could not see the threat, if any, that the officers in plainclothes made at the staircase could continue to carry the effect to the police station when the VRI was conducted.  From the footage of the VRI, D1 was interacting attentively with the officers through the interpreters.  The police officers allowed all three defendants to talk to each other in Mongolian either at the staircase or in the rooms.  The police officers are credible witnesses and I accept their evidence in full.  Their evidence was in no way shattered or discredited under cross-examination by defence counsel.

69.  There is no basis for D3 and D4 to substantiate their allegations as they elected not to give evidence.  D1 and D4 were taken to the hospital to seek medical attendance after the interview.  In the written objections, it was mentioned that D1 was suffering from headache and fever.  D1 mentioned about being handcuffed from the back at the staircase and yet she said she was able to move the handbag and sat on it when she was having menstrual bleeding.  She said she got a lady sanitary pad in the room and yet asked D4 to help her to put on her trousers.  D1 was later handcuffed in the front, which is a piece of information that was never put to the officers at all.  D1 also mentioned that an officer put a hood on her.  Again, this was not mentioned at all when the officers were cross-examined. 

70.  All in all, I do not accept D1’s testimony on the special issue.  In fact, from the response and replies made by D1 during the VRIs, there was no indication at all that D1 was ever threatened or under any oppressiveness in taking part in the interviews.

71.  The reply at entry 2414 is an example when D1 said, “I keep on [sic] answering all your questions as much as I can. Mongolians usually ask this way.  At first, did you go to?  Went in separately, entered - it is true.  Continue like this.  I really don’t understand.” 

72.  In the second VRI, D1 in her reply (entry 972), she said, “I don’t want to answer this question now.  Why don’t you ask this from them directly?”  There are hardly any direct admissions from D1.  At the end of the interview, D1 even said, “Hong Kong has changed, became more beautiful.” (entry 1080). 

73.  I do not believe that the defendants do not understand simple English as they travelled all the way from Mongolia.

74.  Taking all factors into account, I ruled that the VRIs of the defendants are admissible and the defendants did participate in the interviews voluntarily and there is no justification for this court to exclude any of the VRIs.

D1 - 1st VRI on 8 March 2013 from 1040 hours to 1312 hours

75.  Entry:

48, 50, 53 - She was born in 1971, traded at Narantuul market and was a self-employed merchant.

180 - It wasn’t 10; it was 9 [diamonds].

220 - In the beginning, she didn’t know they were diamonds.

222 - Out of curiosity, we went to Hong Kong Convention and Exhibition Centre. We went to see the displayed jewellery.

224, 234 - Inside the exhibition, we saw and met some other Mongolians. We walked for a long time.

254, 260, 277, 283 - (when asked why D1 knew it was nine diamonds) While sitting outside, a young lady called “Moojig-something” counted them and said, “Nine.”

288 - Moojig took and passed them to Jargal.

409 - She received education up to secondary level.

428, 430, 434, 438 - Will use her broken English and body language (to communicate with foreigners). She can’t write (English) and use a calculator when she asked.

621, 623, 642 - She sold collars and front parts of the students’ uniforms.

661 - She delivered in large quantity and sold in wholesale price.

937 - D1 had been in Hong Kong in 2006 to celebrate her birthday.

987, 990, 992 - This time, D1 came to Hong Kong to buy some items like children souvenirs or cute ones for a new small shop.

1003 - D1 browsed through the Internet and saw the exhibition.

1007 - She decided to visit after the Chinese New Year in February.

1009 - After she decided to come, she logged into Internet and saw the jewellery exhibition and thought it might be interesting.

1034 - After arrival, we visited a market, using sign language to ask and check some items of interest and bought a couple of things. They went to Disneyland and to a place where people sold items in wholesale price.

1175 - Inside the plane she met Otgon.

1199, 1201, 1215, 1223, 1227 - She has VISA card and brought RMB$1,000; HK$1,000, US$100 and Yen¥10,000.

1262, 1268 - The credit card was issued by Khan Bank. It is a MasterCard.

1280, 1282 - There was no limit imposed as she had money in her credit card.

1294 - She bought many things using the card.

1342 - She browsed on the Internet (to see the accommodation and tour before leaving Mongolia).

1370, 1382 - She does not know the exact address (of the place she stayed in Hong Kong upon arrival). The airport bus will take her to the place.

1396, 1398 - Otgon took the same flight with them. D1 went to the airport with Jargal. They met Otgon who advised them to stay in a guesthouse.

1438, 1440 - Three of us arrived at a 16-storey building.

1450, 1454 - D1 flew by herself.

1562 - She did not book any place to stay.

1571 - She used to travel many times when she was young.

1596 - (If she could not find a place to stay) she would find somehow a shelter.

1658, 1660, 1674 - Otgon accompanied Jargal and D1 to various places. Mongolians will rely on and render assistance to each other.

1695, 1697 - Otgon told them the accommodation is cheap.

1767 - Three of them checked in to the guesthouse.

1780 - She (Otgon) took them for a sightseeing and went to some shops.

1797 - Otgon was self-employed and used to trade at the market.

1825 - D1 knows (Otgon) for some time but are not close friends.

2042, 2045 - D1 went to the Hong Kong Convention and Exhibition Centre, completed the registration and entered the exhibition.

2066 - After arrival, they took a ferry and there was a big advertisement.

2070, 2082 - She saw an advertisement on the Internet in Mongolia.

2115, 2117 - D1’s name and “Diamond Key Company Limited” are written on the application form.

2122 - This deals with jewellery and also tourism. D2 went to her friend and was told D1 needed to have such a name card. Asked to do it for her.

2126 - The company belonged to her friend.

2141, 2143, 2145 - D1 was told in Mongolia that she must bring along a name card. She learnt that such an exhibition would be held.

2150, 2151 - A name card was a must, otherwise would not be allowed to enter.

2164, 2166 - D1 was not willing to talk about her friend and don’t think this was necessary.

2178, 2184 - Her friend worked in that company in Mongolia.

2189, 2192 - D1 had been sewing collars for about 16 or 17 years. She wanted to have a small business. She borrowed some money from the State and bought a sewing machine.

2257 - (About itinerary) D1 would check on the Internet later. She did not want to stay at home all the time. In the past few years, she did not travel as she needed to look after her daughters.

2291 - D1 asked to print out a business card with her name.

2295 - She came to check the jewellery and its price.

2304 - She does not know Amarmunkh Munkhtuya (D2) well. D1 met her at the exhibition and they greeted each other.

2320, 2322 - D1 knows Tsogbadrakh Otgon (D3) but does not know her well.

2338 - Jargal (D4), Otgon (D3) and D1 entered the exhibition. Two of them filled in the application form and inside they met Otgon and later Munkhtuya (D2) and also Uyanga (D5).

2601, 2605, 2641 - We all filled out the application form separately. Everyone filled [in] the form, away from each other.

2876, 2883, 2894 - D1 bought an Octopus card and the prepaid SIM card. It cost $38.

2904 - D1 had a Mongolian SIM card.

2926 - D1 never worked in Diamond Key Company Limited as a senior manager, as printed in the name card

2942 - D1 does not know if the company address was real.

D1 - 2nd VRI on 8 March 2013 from 1639 hours to 1743 hours (Exhibit P114, P115 and P115A)

76.  Entry:

104 - D1 did not steal (the diamonds).

132 - D1 was standing next to her, took something and walked away. She did not see clearly.

350 - After 10 am on 5 March 2013, after queuing at about 10:40, we went in.

354 - Got entry permit.

362 - Got in with Otgon (D3) and Jargal (D4).

370 - After arriving, we got the application, filled out, got our entry permit and then went into the exhibition.

427, 429 - D1 knows Otgon (D3) back in Mongolia and saw her at the airport.

467 - We (D1 and D4) wanted to do business together, jointly buy and sell some children and teenagers’ stuff.

591 - Three of us (D1, D3, and D4) stayed together in the same guesthouse.

901 - She wrote the personal information on the application form.

924 - She asked for assistance from another person.

D2 - VRI on 9 March 2013 from 1059 hours to 1205 hours (Exhibit P119, P120 and P120A)

77.  Entry:

158 - She completed secondary education

164, 172 - She was self-employed merchant selling electric appliances.

343 - She did not come by plane but came to Hong Kong by land.

430 - D2 came to Hong Kong alone.

552 - The mobile phone was D2’s.

D3’s VRI on 8 March 2013 from 0015 hours to 0219 hours (Exhibit 124, 125, 125A)

78.  Entry:

107 - I don’t speak English and Chinese. How shall I answer the questions?

115 - Am I allowed to write down the questions for my own use?

117 - Please give me a sheet of paper.

131 - I didn’t steal. What now?

201 - D3 came to Hong Kong by herself alone.

217 - She came (to Hong Kong) with her lover. Just tell that, nothing more.

226 - Don’t want to say (the name of her boyfriend).

251 - She runs her own food shop.

264 - (After arriving in Hong Kong on 3 March) she first visited a family and then stayed at a guesthouse.

299 - She knows (D4) as they flew together.

305 - She knows (D1).

322, 332 - She does not know Munkhtuya (D2) well. In general, she does not know her.

361, 371 - She went to the exhibition on 5 March 2013 and once only.

379, 386, 388 - She went there with Jargal (D4) and Odgerel (D1) and also Munkhtuya (D2). They all went together.

396 - To get an entry permit, you need to fill out an application form, so she asked for assistance.

400 - These two begged her to help them fill out the form.

414 - They required my assistance in filling out the form and obtaining the entry permit. She just went there to help them.

432 - We spoke over the phone. They said they are going to the exhibition. They need my assistance to fill out the form. I saw her (Munkhtuya, D2) on 5 March.

434, 438 - Actually, my assistance was not required as there were many young people assisting in filling the forms. It seems they were the employees of that establishment.

464 - She saw the ad (of the exhibition) on the Internet.

485 - They went to the exhibition together.

528 - D3 filled out the form herself

530 - She just copied the others. She does not remember what she wrote.

544, 546 - During the registration, they will take your passport and then gave me an entry permit.

552 - Once they got their entry permit, they went ahead without waiting.

649 - D3 visited several booths and saw items being displayed.

659 - D3 did not (buy anything).

687 - (The black suitcase) was hers.

732, 754 - The five items (taken out from one of the bags in the suitcase) were not hers.

767 - A person asked D3 to keep (the items) safe.

777 - She was certain the person who took (the items) will tell you (the interviewer).

785 - It is not right to accuse someone without any grounds.

800 - “I am certain the person who stole them will confess, will tell you. It is nothing to do with me, am I right?”

802 - The bag is hers but she did not steal them.

808 - That person put those items in her bag. She does not want to be involved in this.

810 - “I am really afraid of that person.”

828 - He just asked her to keep the items in her bag.

867, 873, 886 - D3 identified some items found inside the bag.

1004, 1021 - The name cards in D3’s name are hers.

1030 - She used to work for the company (Nature Kann

LLC).

1130 - The bag belongs to her, but some of the things inside do not belong to her.

1242 - The security code of the bag is triple zero.

1277, 1285 - D3 had no idea who kept the room key of the guesthouse. She would knock the door when returned to the guesthouse.

1304, 1312 - “I don’t feel well. I guess I am scared and nervous.” Because of the rise of the blood pressure, she started to feel dizzy. Her menstruation came.

D4’s VRI on 8 March 2013 from 1813 hours to 2016 hours (P132, P133 and P133A)

79.  Entry:

31, 33 - D4 was born in Mongolia in 1967 with four children.

71 - She was arrested at the staircase on the 16th floor.

105, 107 - She rented a small booth in the market selling items.

136, 138 - She came to Hong Kong on 3 March for the first time.

149 - She came with Odgerel (D1).

193 - She knew Otgon (D3) during the flight.

258 - She came to Hong Kong for sightseeing.

264 - She stayed in a guesthouse where she was arrested.

290 - D4 stayed with D1 and D3 in Room A-12 of the guesthouse on the 16th floor.

296 - She went to the Hong Kong Convention and Exhibition Centre on 5 March.

312 - She came to Hong Kong with D1.

323 - D3 said she knows the language and would guide them, and suggested to stay and share a room.

352 - She went with D1 to the ticketing office called “Air Express”.

435, 437 - She went there for the first time and we applied for an entry permit.

449 - There were many young people there and one of them assisted her in filling up the application form.

463 - She gave them her name cards.

480, 484 - The name of the company is “State Academy for Human Resources Management” and she was there two years ago.

503 - She was the manager.

514, 516 - Two years ago, she got sick and left the job. Her womb got a cancer and had no medical treatment. She quit her job to look for medical treatment.

526, 532 - She did not work for this company now as she left the company two years ago.

604, 609 - They were in a group of two and a group of three and they were standing near Booth 29. Those two said they don’t speak a foreign language and asked to assist them to translate and inquire.

622 - She was standing behind and then she was told to take or hold it and go over there, so she took the thing. “I guess that can be seen from the CCTV, right?”

633 - D2 gave her something in a plastic bag.

642 - D4 was simply standing there. She gave it to D4, and D4 took it like this and hold it next to her belly. While passing by two booths, she came after D4 and took it back.

648, 651 - D4 did not know how D2 got those items as she was standing behind.

669 - She did not notice (how did D2 take the items). She was holding the items, then looked at D4 and told D4 to take that. D4 took and held it and she told D4 keep on walking.

671 - D4 thought she (D2) would make the payment.

686, 692, 694 - D4 moved because she wanted to see a coral being displayed at the booth on the other side. A coral bead used to make earrings. It is a coral bead for earrings. They were in packs.

699 - She went to see those coral beads.

725 - D4 put those things in her handbag.

735 - D4 was able to put those things into her bag. She (D2) came and asked to return. D4 gave them back.

758, 762 - These items (six diamonds) were found by the police in D3’s suitcase.

770 - The plastic bag was in a small dimension and in square shape. “I guess this is the one.”

826, 837 - While D4 was standing outside Booth 29, D2 gave it to D4 and asked D4 to keep it for a while. D4 cannot see what was inside. D4 had no idea what it was.

895 - D4 did not know how come those things, which were taken back by D2, ended up in D3’s suitcase.

965 - When she became nervous or start to worry too much, she started to bleed like menstruation. D4 asked for a menstruation pad.

1021 - The interview was suspended at 1925 hours.

1095 - D2 and D6 left first.

1110 - After that, they checked seven to eight booths and looked at items decorated with coral.

1247 - D4 saw the catalogue and decided to take it so as to show it to her family and to tell them such expensive items are on display.

1397 - She bought the Octopus card upon arrival.

1416, 1436 - She bought the SIM card in order to call home. She has a black-coloured Samsung mobile (Police Exhibit JA20).

1469, 1473 - The other black-coloured Samsung mobile (Police Exhibit JA21) belonged to D1. D1 put the phone inside D4’s bag.

1524 - D4 used it (the name cards) to get the entry permit as she wanted to see the exhibition.

1551, 1553 - D4 was considering to buy some more earrings and rings and then sell them at her booth in the market.

1593, 1585, 1602 - The staff helped her to fill in the registration form. People there presented their name cards.

1607 - It (the name card used for the registration) matched with the name cards found in D4’s wallet.

D5’s VRI on 8 to 9 March from 2223 hours to 0033 hours (P137, P138, P138A)

80.  Entry:

218 - D5 was at the exhibition on 5 March 2013.

224 - She met her friends and followed them.

251, 263, 275 - She sold items at a market. It is a private business, selling trousers and pants. She had been doing the business for five to six years.

323 - She rented a booth and traded inside that market.

338, 340 - She also joined the Oriflame cosmetics network and sold its products. She convinced others to buy the products and make a profit.

367 - She had been in Hong Kong at Christmas some two years ago and also last October.

375, 377, 379 - On the last occasion, there was a big sale, sale of brand name items. She came to buy some for herself. She came with her friend to buy the items which were on sale.

425, 431, 445, 447, 453 - She guessed that she entered into China on 23 February. She went to Shenzhen. It should be the case that she came to Hong Kong on 28 February via Lo Wu and the border was about to close (on the same day).

458, 460, 468 - She came to Hong Kong with a male friend called “Amarzaya” but he left Hong Kong on the next day.

494, 505 - Her friend Amarzaya checked into the guesthouse and paid for two nights for the room. D5 did not have sufficient money and have language barrier, so she moved out. She met some Mongolians and spent a night near the Star Ferry. She stayed in some other places in a couple of days.

515 - The purpose of visiting Hong Kong this time was to buy three or four brand name sports shoes.

620, 622, 637 - D5 knows Moojig (D2) who sold items at the market.

639, 648 - D5 met them (D1, D3 and D4) in the street. D2 introduced them to D5.

656 - D5 followed them (to the Hong Kong Convention and Exhibition Centre) because they said there were items that were sold at discounted price.

687 - To see what kind of jewellery they sold and to see if she can find some cheap items to buy.

693, 697 - Some staff of the registration counter helped her in filling in the form.

703, 713 - The staff looked at D5’s passport and name card and filled in the form.

752 - The company, Urangar LLC (Limited Liability Company), appeared on the name card, used to manufacture and sell small souvenirs.

782 - This company had nothing to do with jewellery.

797, 799, 807, 813 - D5 had left the company and stopped working there about a year ago. She was a salesperson there.

849 - D5 can speak Mongolian only, no other language.

890 - D5 had never been to a jewellery show in Hong Kong before.

922 - We walked together like a group and then separated and then again.

1001, 1013 - D5 left (the Show) together with four of them and then they had lunch.

1142, 1149, 1156, 1270 - Today D5 was supposed to leave for Mongolia alone and she bought the ticket at about 2 pm today.

1220, 1234 - D5 spent a night at the airport yesterday evening. Then she met one Mongolian man and had a chat and drank beer the whole night. They got tired and slept at the waiting hall in the airport.

1279, 1314, 1330 - (Regarding the departure card of the Immigration Department) the particulars were filled in by the young Mongolian man, including “Kowloon Hotel” in the field of “address in Hong Kong”.

1358 - The SIM card in D5’s mobile phone is a Hong Kong SIM card.

1368 - She used the phone to call Moojig.

1409 - She came to Hong Kong with HK$15,000 to buy sports shoes.

1511, 1518 - (Regarding those nine name cards in D5’s name) D5 said “LC” means “limited company” and did not work there.

1535, 1551 - The telephone number on top was D5’s and the number underneath was the company’s, but D5’s number was not in service any more.

1597 - The number was in D5’s iPhone.

1627, 1629 - D5 did not have any luggage. She had some clothes in her backpack.

81.  Defence counsel had no half-time submission.

82.  All five defendants elected not to give evidence nor called any defence witnesses on the general issue.

Analysis

83.  First of all, it has to be stressed that all along, it is the duty of the prosecution to prove the elements of the offence against all five defendants beyond reasonable doubt.  The defendant has no duty to prove anything. 

84.  Each of the five defendants has no criminal record in Hong Kong and that is to be considered as their good character.  As such, the court is to consider all available evidence in their favour in terms of their credibility and propensity to commit crime. 

85.  The content of the VRIs of each defendant will only be applicable to the individual defendant and does not apply to other co-defendants. 

86.  The fact that all five defendants elected not to give evidence on the general issue is their right and this court will not draw any adverse inference against them on their election.  On the other hand, what was said by the defendants in their VRIs, if accepted, could not be attached with the same weight as if the defendant testified in court.

87.  While I found the versions put forward by the defendants in their VRIs not creditworthy, I have to consider the evidence tendered by the prosecution as a whole to see if the offences could be proved beyond reasonable doubt.  I found that all the prosecution witnesses are credible witnesses and their evidence can be relied on.  Their evidence has not been shattered by the cross-examination of the defence counsel.

88.  It is clear that the answers given by all five defendants in their respective VRIs are evasive and quite often they simply said, “I don’t know.”  It is noted that three of them (D1, D3 and D4) complained of having their menstruation problem while being interviewed.  D1 even claimed that she started to bleed at the staircase on the 16th floor.  I find that they tried every means to challenge the voluntariness of their VRIs but to no avail.  From the extracts of the entries in the VRIs, as I have quoted earlier on, it is obvious that the defendants knew their rights and the process was fair to them. 

89.  There is no dispute that the act of stealing could not be captured by the CCTV at the Show and that, to some extent, shows the skill and strategy of the culprits in concealing the crime.  The fact is stolen properties were located in D3’s suitcase.  Of course, D3 denied any knowledge of the stolen properties and simply said that a person put the items into her suitcase.

90.  D1, D3 and D4 were staying in Room A-12 of Mirador Mansion.  D2 was arrested in Tsim Sha Tsui area on 7 March while D5 was arrested when she was about to leave Hong Kong for Mongolia on 8 March.  It is of interest to note that D1, D3 and D4 came to Hong Kong by flight at about the same time on 3 March 2013.  D2 and D5 came to Hong Kong via Lo Wu at about the same time (that is, 11:51 pm and 11:54 pm respectively), three days earlier, that is, on 28 February 2013.

91.  Telephone records showed the link between D1 and D3; D1 and D5; D2 and D3; D2 and D5; D3 and D4; and D3 and D5.  D2 and D5 called each other for 37 times (see paragraph 8 of the Admitted Facts).  They all went to the Show once and that was on 5 March.  CCTV captured D1, D2, D3, D4 and D5 entering Hall 3F and all of them appeared at Booth E29 in Hall 3F (paragraph 11 of the Admitted Facts).  All five defendants registered before entering the show and each of them was given a badge.  They were required to fill in the buyer’s registration form and each applicant was required to present his or her passport.  The admission fee was HK$100 and the participants were required to present their name card to show that they were in the jewellery business and for the record purpose.  All five defendants presented their name card for registration purpose.  It shows that even though they just walked in on the day to attend the show, they have prepared their name cards for registration purpose.  The visit to the show was planned and was not an ad hoc arrangement.

92.  I found it extremely unusual if an ordinary tourist would have the interest to see a jewellery show, whether it is on high end or not, on their first or second visit to Hong Kong.

93.  The background of the defendants, all come from Mongolia, would further reinforce such suspicion, as some of them run a small booth in the market selling small items or accessories.  It is clear that the market the defendants talked about was totally different from the market that was targeted for the show.  There was no indication that they would visit shops of those accessories of low end in Hong Kong.  The defendants were equipped with local SIM card for contact and they did communicate with each other during their stay.

94.  The title shown in their respective name cards tend to boost their “status” in the jewellery trade.  It is of interest to describe the name cards of the five defendants that they provided to the organiser when they registered at the counter.  D1’s name card had words printed on both sides of the card.  On one side is in Mongolian language; on the other side in English with words “Diamond Key Company Limited, ODGEREL Ul-oldokh, Senior Manager”.  There is a picture of diamond on both sides.

95.  D2’s name card is a bit of low quality and only one side of the card had words in Mongolian language.  There are two telephone numbers and a logo.

96.  D5’s name card looks basically the same as that of D2’s, with two telephone numbers and the same logo.

97.  D3’s name card looks different with printing on both sides.  One side is in Mongolian language and the other side in English. It states “NATURE KHAAN LLC, OTGON Tsogbadrakh, Vacuum Manufacturing Supervisor”.

98.  D4’s name card is of a better quality, with printing on both sides.  One side is in Mongolian language and the other side in English, stating “Mongolian Human Resources Management Innovation Academy, JARGAL Chimed, Senior Manager”.

99.  I have no doubt that these name cards were prepared in advance to facilitate them to register as a buyer in the show. That also indicates it was not and could not be their impromptu act to go to attend the show just by chance when they saw an advertisement either in Hong Kong or on the Internet.

100.  There is no dispute that all five defendants came from Mongolia.  They know each other and on 5 March they all went to the show.  They caused the buyer’s registration form be filled in with their particulars.  The staff of the show checked their passports and each of them was issued a buyer’s badge.  Their movements were recorded.

101.  There is also no dispute that diamonds and coral items, subject matter of Charge 1 and 2 respectively, were stolen and some of those stolen properties were found in D3’s suitcase.  D1, D3 and D4 stayed in the same room of the guesthouse in Mirador Mansion. 

102.  I do not believe that the defendants just met each other by chance and they agreed to go to the show on the same day.  The only reasonable inference is that D1, D3 and D4 came to Hong Kong to join D2 and D5, who came to Hong Kong via Lo Wu a few days earlier.  They came all the way from Mongolia.  Each party had various telephone communications.  It is abundantly clear that they were in one group and took action in concert as far as going to the show is concerned.  I cannot see any other possible explanation as to the coincidence of their appearance in the show.  No one spotted the theft when the defendants were at the scene.  The victims discovered the theft at a later stage.

103.  D5’s fingerprint impressions were found in a diamond certificate, on a wrapping paper and a plastic bag containing, inter alia, a diamond, as stated in paragraph 13 of the Admitted Facts.  These items were found inside D3’s suitcase.  D5’s impression was also found on D1’s business card and so was on D5’s own business card, both of which were stapled to their respective registration form.  It could not be a coincidence.  D4 in her VRI admitted that she followed the group to the show and she was given some items by D2 when they were at the booth.  Although there is no CCTV footage in respect of the Charge 2, the recovery of the stolen coral chain and the coral beads speaks volumes as to the existence of a theft.

104.  Although the conduct of D2 was suspicious when she joined the other defendants to go to the show, I have a reasonable doubt as to her involvement in these two theft cases.  That is so even though there were 37 calls between D2 and D5.  There is no admission on her part nor is there any fingerprint impressions on the package of those stolen properties.  The CCTV footage is not clear enough to show that D2 received some items from other culprits.

105.  As mentioned in paragraph 22-93, Archbold Hong Kong 2013, the doctrine of recent possession, which is no more than the application of common sense, applies equally to thefts other than in the course of a burglary, whether a pickpocketing or an armed robbery.  Evidence could not and should not be considered in isolation and when all the evidence are canvassed in totality and on the whole, the inference that can be drawn can be compelling.

Verdict

106.  Taking all the circumstances into account, I find that the prosecution failed to prove the charges against D2 and I acquit D2 of the two charges accordingly.

107.  On the other hand, based on the abovesaid analysis, I find that the only reason and irresistible inference is that the defendants, except D2, committed the first charge.

108.  I convict D1, D3, D4 and D5 of the 1st charge.

109.  As regards the second charge, there is no dispute that the stolen property of the second charge was found in D3’s suitcase.  I have no doubt that the doctrine of recent possession is also applicable in the present case. 

110.  I have considered the position as enunciated in Archbold Hong Kong 2013, paragraph 22-225 to 22-229, relating to the alternative charge of theft and handling.  D1, D3 and D4 lived in the same room in the guesthouse.  They went to the show together.  The first and the second offences were perpetrated in the same show on the same day.  I find that they acted in concert.  I will rely on section 32 of the Theft Ordinance and the alternative verdict of the schedule to the Ordinance. 

111.  I find that D1, D3 and D4 are guilty of the offence of handling stolen goods under section 24 of the said Ordinance. 

112.  I acquit D2 and D5 of the second charge.

113.  To conclude, I convict D1, D3, D4 and D5 of the 1st charge and D1, D3 and D4 of the alternative verdict of handling relating to the second charge.