HKSAR v. EGINA SAMSON SAMSON

DCCC 218/2023

[2024] HKDC 453

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 218 OF 2023

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REASONS FOR VERDICT

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THE CHARGE

1.  The defendant pleaded not guilty to one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210.

BACKGROUND

2.  It is the prosecution case that the defendant, together with another male unknown, stole Mr Wong’s (PW1)  Rolex watch valued at HK$105,000 outside No. 72 Kimberley Road, Tsim Sha Tsui.

3.  In the small hours of 19 November 2022, after having some drinks with friends, PW1 called for Uber service to take him home.  While waiting for Uber to come, PW1 seated on the stair steps of a restaurant on Kimberley Road to have a brief rest.  PW1 had his Rolex watch worn on his left wrist.  Defendant together with an unknown male approached PW1. Defendant pulled PW1’s left wrist forcefully and stole PW1’s Rolex watch.  The defendant and the unknown male then started to run.  PW1 immediately gave chase.  During the course of chasing, a plainclothes police officer gave assistance and had the defendant apprehended.  The accomplice of the defendant ran away without being caught. The Rolex watch was not found.

4.  It is the defence case that the defendant denied stealing PW1’s Rolex watch. The defence did not dispute that PW1’s Rolex watch was being stolen at that time, however, the person who took his watch was not the defendant. Defendant was a bystander walking with his Kenyan friend and had never taken the Rolex watch of PW1.

5.  The main issue of the case is identification.

TRIAL

6.  The prosecution called 2 prosecution witnesses. They were

PW1 Mr Wong Chit (PW1)  and police constable 11663 (PW2).

7.  Admitted facts (Exhibit P4)  were agreed pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221.

8.  After the conclusion of the prosecution case, the defence made no half time submission.  I found there is a case to answer for the charge.

9.  The defendant elected to give evidence but called no witness.

PROSECUTION CASE

PW1 Mr Wong Chit

10.  PW1 is 33 years old. He was an advertisement designer and is now a civil engineer.

11.  At around midnight on 19 November 2022, PW1 drank with his friends at a bar called “Spin” on 6/F of a building in Knutsford Terrace, Tsim Sha Tsui. At round 2-3 am, PW1 said goodbye and chatted with his friends on the street. Sometime around 4 am, PW1 called for Uber service to take him home in Tseung Kwan O.

12.  PW1 waited for Uber to come at Kimberly Road. PW1 seated alone on the stair steps of the entrance of a restaurant on Kimberly Road and took a brief rest.

13.  PW1 was wearing his Rolex watch on his left wrist at the material time.

14.  While PW1 was seating on the stair steps and waiting for Uber, he felt his left wrist was pulled by someone forcefully and then noticed that his Rolex watch was gone.  PW1 immediately stood up and looked to his left side.  PW1 saw two people with dark skin, one was tall and the other was short, running.  PW1 shouted “Robbery”.

15.  It was the evidence of PW1 that when PW1’s left wrist was pulled, it was the taller male who took his Rolex watch.  PW1 confirmed that the taller male was the defendant.

16.  PW1 testified that there was no other pedestrian apart from these two people with dark skin on the street.

17.  PW1 described that both people with dark skin were male.  They were around 30-40 years old. The taller one was stronger in terms of body built and wore pale grey or white color clothing on his upper body and grey or dark grey on lower body. The shorter one was dressed in red.

18.  There were streetlights and lighting was sufficient at the stair steps where PW1’s left wrist was pulled.  The lighting was also sufficient to allow PW1 to see the two males running and to keep them chasing.

19.  The two males were fleeing in the same direction.  PW1 kept shouting “Robbery” and chasing after the two males. As PW1 was shouting, someone came up and helped PW1 to chase after the two males. PW1 then noticed a police vehicle with flashing lights on in Cameron Road (location marked “x” in Exhibit P1C). PW1 was informed that the one who helped PW1 chasing the two males was a plainclothes police officer, PW2. PW1 then saw PW2 kept running after the two males.

20.  The two males ran along Kimberley Street and turned left to run on Shun Yee Street, down to Cameron Road and then along Carnarvon Road and finally to the rear lane/alley of Carnarvon Road (see the highlighted route in Exhibit P1B). PW1 did not get into the rear lane/alley as he noted that PW2 had already picked up the chase of the two males.

21.  The male with a stronger built, ie the defendant, was apprehended by PW2 at the rear lane/alley of Carnarvon Road, however, the other male had gone. At the scene, PW1 identified defendant was the person who stole his watch.

22.  The Rolex watch was not found.

The Rolex watch

23.  The Rolex watch being stolen belonged to PW1.  PW1 purchased the Rolex watch on 22 December 2018 in Hong Kong at the price of HK$105,000.

24.  PW1 produced the receipt and the authenticity certificate /warranty card of the Rolex watch as Exhibit P2 and P3 respectively.

25.  Under cross examination, PW1 testified that:

(a)  PW1 had taken cocktails and beers with his friends at the “Spin” bar. He was slightly tipsy at Kimberley Road.

(b)  When PW1 was waiting for Uber at Kimberley Road, he closed his eyes and took a brief rest. But when he felt the strong pull of his left wrist, he became conscious and found his Rolex watch was missing.

(c)  It was put to PW1 that it happened during Covid period, therefore, everyone was wearing mask. PW1 admitted he could not see the face of the person who took his Rolex watch but was able to see the shape of the head, the skin color, body built, height and the attire of the person. PW1 also noticed the person had an accomplice. PW1 was certain it was the stronger built person, ie the defendant, who touched his wrist to pull and took his Rolex watch.

(d)  In the 2 witness statements[2] of PW1, there was no mention that PW1 identified the defendant at the scene when the defendant was apprehended. Though it was not mentioned in the witness statements, PW1 confirmed that he had pointed out to the police that the defendant was the person who stole his Rolex watch and it was also the police that asked him to identify the culprit at the scene.

(e)  It was put to PW1 that the identification that PW1 made in court was not based on the person who stole his watch but based on the impression that PW1 had at the scene when the defendant was caught and further reinforced by recognizing defendant at the Identification Parade. PW1 disagreed. PW1 denied he was confused of the identification he made at the scene and in the subsequent Identification Parade.

(f)  It is put to PW1 that the observation PW1 had made at Kimberley Road last for around 15 seconds, PW1 could not take a good look of the person who stole his Rolex watch. PW1 denied. PW1 reiterated that he was able to see the shape of the head, the skin color, body built, height and the attire of the person at the time when his Rolex watch was stolen.

(g)  It was put to PW1 that the defendant is 1.93 metre of height and big built but not 1.8 metre tall and medium built as PW1 stated in his witness statement.

(h)  PW1 disagreed that he had mistaken that the defendant was the person who stole his watch. PW1 disagreed that the defendant was actually a bystander and had never taken PW1’s watch.

PW2 PC 11660

26.  On 19 November 2022, PW2 was on duty in plainclothes from 2200[3] to 0720 hours and performed anti-crime patrol task in Tsim Sha Tsui area.

27.  At around 0453 hours, PW2 was at No 5 Observatory Road, Tsim Sha Tsui. PW2 saw two south Asian males running out from the Road and was closely following by a Chinese male, PW1.  PW1 shouted, “He stole my watch!” loudly. PW2 came to know that the person whom PW1 referred to were the two south Asian males that PW1 was chasing.

28.  Having seen the situation, PW2 followed PW1 to give chase to the two south Asian males, one was running in front and the other behind.  PW2 was at a distance of 5 meters away from the south Asian male running behind. PW2 continued chasing them in various streets. PW2 then lost sight of the south Asia male who was running in front when PW2 made a left turn from Cameron Road to Carnarvon Road. The one running behind then ran into the rare lane/alley of Carnarvon Road.  PW2 followed.  This south Asian male, whom PW2 identified to be the defendant, then finally stopped in the middle of the rear lane/alley of Carnarvon Road as it was a cul-de-sac. PW2 conducted body search and found that there was no weapon on the defendant.  Defendant was then attended by other colleagues of PW2.

29.  PW2 approached PW1 to make enquiry.  When defendant was bought to the main Carnarvon Road from the rear lane/alley, PW1 pointed out that defendant was the one who stole his watch.

Body search and enquiry

30.  During body search, PW2 found a Samsung mobile phone with a black case from the left front pocket of defendant’s pants and $11,000 from the right front pocket. A hotel key card and Form 8 document were found in the back pocket of defendant’s pants.

31.  PW2 made enquiry from defendant in simple English by asking him “Did you steal something” and “why do you run away”.  Defendant did not give any reply. PW2 was not sure whether defendant understood English or not.

32.  PW2 subsequently arrested the defendant and found that the defendant was from Tanzania.  The defendant was brought to the Tsim Sha Tsui Police Station.

33.  It was the evidence of PW2 that he could clearly see the south Asian males when they were running because there were streetlights all along. It was in the small hours of the day, there was no one on the street.

34.  Under cross examination, PW2 added that after PW2 followed the defendant to enter into the rear lane/alley, three other police officers joined.  Two of them were in uniform and the other one in plainclothes.  When they were in the rear lane/alley, a touch had been used by the police.  Two body searches were conducted on defendant and the defendant did not resist to being searched. The Rolex watch of PW1 was not found.

35.  PW2 disagreed that PW1 identified defendant hesitantly and without confidence at the scene. 

Case to Answer

36.  At the close of the Prosecution case, there was no half-time submission by the defence.  I ruled that there was a case to answer in respect of the charge that the defendant was facing.

Defence Case

37.  The defendant elected to give evidence. There was no defence witness.

Defendant

38.  Defendant is 28 years old. He is a Tanzanian and speaks Swahili.  He is a Form 8 holder.

39.  At around 2100 hours of 18 November 2022, the defendant was with his friend, Peter, in the star ferry at Tsim Sha Tsui.  They were drinking alcohol together.  Peter informed the defendant that he had to leave after he received a phone call.  Peter gave $11,000 to the defendant and asked the defendant to give to the landlord in the morning.  Peter told defendant that he was not sure if he was going to return in the morning. Peter then left.

40.  Defendant and Peter were living together.

41.  Afterwards, the defendant went to a park near Shangri-la Hotel in Tsim Sha Tsui.  At the park, there were people sitting and drinking.  The defendant saw a black person from Kenya who was sitting alone and spoke Swahili.  The defendant then approached the Kenyan and said hello.  The defendant joined the Kenyan to drink beer together.  When all the alcohol were consumed, the Kenyan told defendant that if defendant wanted to continue to drink, he could go to the Kenyan’s home.  The Kenyan suggested to buy drinks from the Circle K convenient store as it offered discounts during the weekends.  The defendant went to buy more alcohol and went to the Kenyan’s place.

42.  Afterwards when they were on their way, they passed Kimberley Road. While the defendant and the Kenyan were walking, he heard a loud voice.  The defendant didn’t understand the language that the person was speaking.  The defendant turned around and saw an Asian Chinese male.  He was not sure if this Chinese male was PW1 or not.  The Chinese male was walking fast, shouting and pointing fingers towards them.  The defendant did not understand what the Chinese male was saying, so he walked a bit faster.  The voice became louder, and defendant found the Chinese male was running towards him.  The defendant did not know what was going on as defendant was at a state of drunkenness.  The defendant then found himself running.  The Chinese male kept running after defendant.  When defendant ran into the rear lane/alley, he turned around and he couldn’t see the Chinese male anymore.  He stopped running and started to walk.

43.  All of a sudden, there was touch light behind the defendant and footsteps of running was heard.  The defendant saw an Indian or Pakistani police in uniform told him to stop.  There were also other police officers in plainclothes.  The defendant stopped. The Indian or Pakistani police told defendant that he saw him running.  The defendant did not say anything and was body search twice by the police.  The first time was at the rear lane/alley. The second time was on the main road after the police removed the defendant from the rear lane/alley.

44.  It was the evidence of the defendant that he had never seen the Chinese male sitting in Kimberley Road.  The defendant did not approach the Chinese male and had never touched his left arm.  The defendant did not steal the Chinese male’s Rolex watch.

45.  The defendant is 1.93 meter tall with a big built.

46.  Under cross examination, the defendant testified that:

(a)  He came to Hong Kong in 2017 and was given a Form 8 recognizance.

(b)  Peter is a Tanzanian. Peter is a permanent resident in Hong Kong and worked in a garage in Kam Tin. Defendant had known Peter in the same year that he came to Hong Kong in 2017. The defendant started living with Peter in a guesthouse in Chung King Mansion in June 2022. Peter paid $5,000 every month for the rent. The defendant did not contribute to the rent as he is a Form 8 holder who cannot work in Hong Kong.

(c)  On 18 November 2022, when the defendant and Peter were at the star ferry, Peter gave $11,000 to defendant as Peter said he may not be able to return in the morning to give the rent to the landlord.

(d)  The defendant did not want to be alone after Peter left, so he went to a park near the Shangri-la hotel and met a Kenyan. He forgot the name of the Kenyan. The Kenyan was shorter than the defendant. The defendant was bigger. The Kenyan home was in Tsim Sha Tsui area.

(e)  The defendant did not understand English and Cantonese.

(f)  When the defendant heard the loud voice, he and the Kenyan started to run and the Kenyan who was shorter was running in front and they were around 4.2 meters apart.

(g)  When the Chinese male was pointing and shouting at the defendant and the Kenyan, there were no one else on the street. The defendant did not understand what the male was shouting, and he started running. He was high from drinking. Though he was drunk, he did not stumble or fall during the course of running.

(h)  The defendant denied that $11,000 belonged to himself.

(i)  The defendant denied that he, together with the black male, stole the Rolex watch from PW1.

(j)  The defendant denied that he ran because he knew he stole the watch and in order to avoid from being chased.

ANALYSIS

47.  I remind myself that the burden is on the prosecution to prove the case beyond reasonable doubt.  The defendant has no burden to prove.

48.  I have carefully considered all the evidence, exhibits and the submissions made by both parties.  

49.  It was submitted by the prosecution that[4]:

(a)  Subject to Turnbull directions, the Prosecution submitted that the court can accept the identification of the defendant as the person who stole his Rolex watch as a correct and reliable identification

(b)  Defendant’s flight was not for an innocent reason. There was no logical reason as to why he fled the scene. Apart from drunkenness, the defendant gave no other explanation for his sustained flight from Kimberley Road to the alleyway behind Carnarvon Road.

(c)  The Prosecution submitted that the court can rely on the correctness of PW1’s identification and the element of flight as consciousness of guilt to find the Prosecution to have proven the guilt of the defendant beyond reasonable doubt.

50.  It was submitted by the defence[5] that:

(a)  The Defence’s position is that the defendant was not involved in the theft and that he was an innocent, drunk, bystander who was mistakenly identified by PW1 and subsequently chased through areas of Tsim Sha Tsui till he was eventually intercepted by PW2. The crux of the Defence case is that PW1 mistakenly identified the Defendant as the man that stole his watch.

(b)  PW1 at first instance did not mention that he himself saw the person that removed his watch from his wrist and yet in cross examination he gave an account of seeing the person at his left take the watch. It is submitted that PW1 is confused as to what actually happened and even if PW1 did witness the watch being taken from his wrist he admitted he did not get a good look at the person’s face that took his watch in a mere 15 seconds. It is submitted that the observations made by PW1 at the time of the theft if any was both a mere fleeting glance and poor and that he had mistakenly identified that defendant as the person that stole his watch.

(c)  Under cross-examination PW1 stated that he described the defendant as medium build as he was comparing him to other Africans, it is submitted that this explanation is not credible and the only explanation for the difference in build from that described by PW1 and that of the defendant is that the Defendant was not the same person that stole PW1’s watch.

(d)  PW1’s identification of the defendant was made after seeing the defendant at the identity parade and not at the time the offence took place.

(e)  The watch was never found on the defendant.

(f)  Based on all the factors, it would be unsafe to rely on PW1’s identification of the defendant.

(g)  The defendant’s explanation amounts to an “innocent” reason for fleeing and accordingly no notice should be taken of the fact that the defendant was running or that it is evidence of guilt (HKSAR v So Tsz Kon [2015] 3 HKLRD 169).

51.  It is not dispute that PW1 had his Rolex watch worn on his left wrist when he was waiting for Uber on Kimberley Road.  It is also not in dispute that his Rolex watch was stolen when he was on Kimberley Road, Tsim Sha Tsui.  The main issue of the case is whether defendant was the person who stole PW1’s Rolex watch and defendant was acting with an unknown male at the material time.

52.  The credibility and reliability of PW1 on evidence of identification is, therefore, the central issue of the case.

Identification

53.  As identification being the substantive issue, the Turnbull guidelines [1977] QB 224 applied.

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police?

All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”

54.  I remind myself that I must approach the issue of identification with caution. An honest witness can be mistaken.

55.  It was the evidence of PW1 that there was no other pedestrian on the street except the two males.  PW1 emphasised that he was certain on this. In fact, it was also the defence case that there was no other person when defendant was running with his Kenyan friend on the street.  Therefore, the street was clear at the material time.  As such, when PW1 looked up and found there were two males, his observation was not impeded.

56.  In addition, it is noted that, the moment when PW1 found his Rolex watch on his left wrist was stolen, he immediately looked up. When he looked up, he noticed the two males.  There was no time gap in between.  His attention at that moment was the people who took his watch. When PW1 looked up, he was able to observe the features of the males, including their gender, age, skin color, body built, clothing and height.

57.  PW1 was also able to distinguish the acts of the two males as well.  PW1 said the male who was taller and stronger built, i.e. the defendant, was the one who took his watch.  The male who was shorter was in front and the taller one was slightly behind when they were running.  PW1 had never mixed up the two males even though they both have the same skin color.

58.  PW1 confirmed that there was sufficient lighting when he was making the observation.  It was also the evidence of PW2 that there were streetlights. There were streetlights all along that allowed PW1 to run after the males all the way down the roads and until that chase was picked up and assisted by PW2. PW1 confirmed that the two males whom PW1 were chasing were the same two males that PW2 chased after when PW2 gave assistance.  It is also not dispute that the defendant had taken the escape route highlighted in P1B.  The defendant was then apprehended by PW2. The lighting was adequate. The chain of the chase has not been broken.

59.  I am aware that that no Rolex watch was found from defendant.  It is also the facts of the case that defendant was acting with one other male at the material time, and the other male had gone.

60.  I do not find that the height and built of the defendant described by PW1 in his witness statement, i.e. 1.83 meter and medium built and the height and built stated by defendant i.e. 1.93 meter and large built to be of material difference.

61.  I also noted that under cross examination, PW1 said he had been drinking with his friends before the incident happened, PW1 was slightly tipsy at the material time and he had closed his eyes to take a brief rest on Kimberley Road.

62.  In order for a timepiece to be removed from the wrist, without the proper opening of the buckle and clasp of the watch straps, the strength of the pull required must be substantial to achieve the removal.  In particular, it was a Rolex watch in the instant case. It was the evidence of PW1 that he felt a strong pull and then found that his watch had gone.  The strength of the pull must be very heavy that enable him to be quickly aware of the situation. It was then that he became conscious and looked up and saw the two males. Under such circumstances, PW1’s attention must be focus on the persons who stole his watch.  PW1 was certain that it was defendant who took his watch.  In addition, there were no other people on the street except for the two males. He then gave chase of the two people and later assisted by PW2.  As such, I do not find PW1 was affected by alcohol when he was making the observation.

63.  Under cross examination, it was put to PW1 that he did not mention he had identified the defendant at the scene in PW1’s two witness statements.  It was put to PW1 that the reason was because he was confused of the identity.

64.  Both PW1 and PW2 testified that PW1 had pointed out the defendant as the person who stole his Rolex watch at the scene.  It had never been put to PW2 that identification at the scene was not made at the scene under cross examination.  I considered that PW2 had to made enquiry from PW1 in the first place about the case before PW2 could confirm whether the person PW2 apprehended was the same one that PW1 had been chasing after.  PW2 had also had to confirm the type of offence to arrest and the nature of property to search from the defendant.  Also, it was admitted[6] that defendant was arrested and cautioned by PW2 outside 37 Carnarvon Road but not at the rear lane/alley.  I found that PW1 had pointed out the defendant to PW2 at the scene and identified defendant to be the person who stole his Rolex watch.

65.  Under cross examination, PW2 never agreed that PW1 identified defendant at the scene hesitantly and without confidence.

66.  It is also not dispute that the defendant was identified by PW1 at the Identification Parade.  As such, PW1 must have based on the observation he had made when his Rolex watch was stolen in order to point out the culprit at the Identification Parade.  I am not convinced that PW1 was confused of the identification.  I found that the observation regarding the gender, age, skin color, body built, clothing and height of the culprit was made at the time when PW1’s Rolex watch was stolen.

67.  For the above consideration, I am sure that the identification of PW1 was not mistaken.

68.  I have carefully considered the defence’s case.

69.  It was the defence’s case that the defendant and his Kenyan friend were on their way to the Kenyan home to drink together.  So their main purpose was to continue to drink.  The defendant had also bought some alcohol from the Circle K convenient store as the Kenyan suggested that discount was offered. However, no alcohol drinks were found from the defendant.

70.  The defendant explained that the $11,000 found from him under body search was given by his friend, Peter.  It was the rent of the place where they were living together, and the monthly rent was HK$5,000.  The defendant did not contribute to the rent as he is a Form 8 holder.  They had been living together since June 2022. When defendant was asked why the amount was more than HK$5,000, he replied that it was usually paid one month more in advance as it was a guesthouse.  It is noted that, in defendant’s earlier answer under cross examination, the rent was paid $5,000 every month by Peter.  As the place had been rented for some time, the payment of one month’s rent in advance did not fit into the situation.  Moreover, it was also peculiar for Peter to give $11,000, but not $10,000 (two months’ rent)  to defendant.  Furthermore, the defendant was entrusted with an important task to hand in the amount to the landlord, the defendant did not clarify with Peter with the extra $1,000 being given.

71.  Defendant was not sure if the Chinese male who shouted and pointed at him was PW1 when the defendant and his Kenyan friend were on Kimberley Road. As the facts of the case shown, the Chinese male the defendant referred to must be PW1.  The defendant did not understand what PW1 was saying, and he found PW1 shouting, pointing at them and Defendant began to run.  In examination-in-chief, defendant was asked repreatedly if he was scared so he ran, defendant did not say so but replied that he was high and drunk at that time.  Therefore, defendant did not run out of fear. Coincidently, when PW1 shouted at them, his Kenyan friend, like defendant, also ran with him without any prior exchange.  The undisputed route showed, they had run for various streets with a significant distance. Moreover, it was noted that the defendant was running behind his Kenyan friend, but the defendant did not follow his Kenyan friend in the end.  He was the only one who ran into the rear lane/the alley.  The defendant did not seem to look for the whereabout of his Kenyan friend afterwards.

72.  Having considered the defence case, I do not find the evidence of defendant to be credible.  Although I do not accept the evidence of the defendant, I have to consider whether the prosecution has proved the case beyond reasonable doubt.

73.  The defence mainly contested the evidence of identification.  Apart from that, much of the facts of the case were not challenged.

74.  Having considered the evidence of PW1 and PW2, I find their evidence to be clear and cogent.  They were unshaken under cross-examination and there was no inherent improbability in their evidence.  I considered them honest and reliable.  I accept PW1 and PW2’s evidence.

75.  From the above consideration, I find that PW1’s evidence on identification was not mistaken.  I am sure it was the defendant who stole PW1’s Rolex watch at the material time together with another unknown male who had fled.

Flight

76.  The prosecution relied on the evidence of flight to support its case.

77.  In order for flight to be capable of providing support for the prosecution’s case, there must be some evidence to establish a connection between the defendant’s conduct (his flight)  and the offence in question.  (See Mo Shiu Shing [1999] 1 HKC 43 and Specimen Directions).

78.  In HKSAR v So Tsz Kon [2015] 3 HKLRD 169 , where the Court held at para 58:

“The prosecution alleged that the defendant attempted to flee the scene after the crime. It is necessary for the jury to consider the following questions:

(1)  Whether the defendant did in fact attempt to flee after the crime. If the jury are sure he did, then next consider:

(2)  Why did the defendant flee? The mere fact that a defendant attempts to flee is not in itself evidence of guilt. There are many innocent reasons why a person may do so, for example, out of fear of the police, or due to commission of an offence unrelated to the present one or of some other disgraceful act. If the jury think that there is, or may be, an innocent explanation for his attempted flight, then they should take no notice of his attempted flight. It is only if the jury are sure that the defendant did not attempt to flee for an innocent reason, but instead did so by reason of his being aware of having committed the offence in question and hence choosing to flee in order to prevent the offence from coming to light, that they can regard his attempted flight as evidence which supports the prosecution case.”

79.  At no stage defendant claimed that he ran because he was scared in his evidence.

80.  The defendant noticed that PW1 was shouting, pointing and running towards him.  PW1 did not have any weapon in his hands.  The defendant did not even understand what PW1 was saying.  There was no signs of imminent danger or harm that PW1 would cause to the defendant.

81.  If defendant was a bystander, there was even no reason for him to run.  Defendant said he was high because of drunkenness, I did not find it to be the reason to run under the circumstances because he had a companion to go with.  Without any prior communication, it was weird that his Kenyan friend also run with the defendant together instantaneously and simultaneously.  It was also unreasonable that defendant chose not to follow the running route of his Kenyan friend who was only a few meters ahead of him. In the end, the defendant ran into the rear lane/alley while his Kenyan friend went to nowhere could be found.  There must be an understanding between themselves so they both choose to run tirelessly through various streets.  The only reason that could be drawn was, the defendant chose to run in order to avoid being caught for stealing PW1’s Rolex watch.

82.  I am sure that there was nexus between the defendant’s flight and what happened on Kimberley Road.  The defendant together with his accomplice fled immediately after PW1 found his Rolex watch was gone and PW1 stood up to chase after them.  The only reasonable explanation for the defendant’s flight was that he was trying to flee from being caught for stealing PW1’s Rolex watch on Kimberley Road.  I am satisfied that the defendant’s flight supported the prosecution’s case.

83.  In view of the facts of the case, the evidence of flight is, however, only ancillary.  Even if the evidence of flight could not be accepted as evidence to support the prosecution case, there would still have been sufficient evidence to find that defendant was the one who stole the Rolex watch of PW1.

CONCLUSION

84.  Having considered the above, I am sure that defendant, together with another male unknown, stole PW1’s Rolex watch in Kimberley Road, Tsim Sha Tsui.

85.  I find the prosecution has proved the case beyond reasonable doubt.  I convict the defendant of the charge.