HKSAR v. FAN CHI WAI

DCCC 207/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 207 OF 2015

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.

2.  The particulars are that on a day between 22 December and 24 December 2014, he dishonestly received certain stolen goods, namely a motorcycle bearing the registration RT‑4352, knowing or believing the same to be stolen goods.

3.  The defendant was unrepresented and preferred to proceed with the trial rather than apply for Legal Aid if given the opportunity.  The process and procedure of a trial was explained to him and understood.

4.  The prosecution case was that the defendant was caught red‑handed with a stolen motorbike which he claimed to own.  When ownership was verified, it was found to be a stolen vehicle.  He was then arrested.

5.  The defendant’s case was that he was an innocent passer‑by who had a verbal altercation with a group of plainclothes men he did not know were police officers.  Following this altercation, he was framed for the theft of a stolen motorcycle found nearby.

6.  The issue in this case is one of credibility. There is no dispute the motorbike was stolen.  The question is  has the prosecution proved to the appropriate standard the defendant received the bike and knew or believed it to be stolen?

The Prosecution Case

7.  PW1, Mr Vong Chi-peng, worked for Kone Elevator Hong Kong Limited Company as an elevator technician.  He was given a motorbike to use, and put in charge of it.  On 22 December 2014, he parked it underneath a footbridge near Wan Tsui Estate Shopping Centre.

8.  This vehicle needed a key to start the engine. It also had a rear tail box attached to it that contained his tools and belongings worth over $5,000.  The bike was worth about HK$40,000.

9.  On the following morning at about 9.30 am, on 23 December, he returned, to find it had been stolen.  He looked everywhere for it, and made a police report at about noon when he could not find it.

10.  At about 10.30 pm the next day, on 24 December 2014, the police called him and asked him to go to Chak Tsui House on Wan Tsui Estate.  There he was shown and identified his rear tail box.  It has the name of his company printed across it.  It is clearly seen in photographs of Exhibit P17, specifically photographs 15 to 19.  It had been taken off his motorbike and placed on the ground in the corner.  His tools were all missing, but there were tools in it he did not recognise.

11.  He was then taken to Fung Wah Estate, to a bridge near Sau Fung House, and identified his stolen vehicle minus its rear tail box.  Photographs 1 to 9 of P17 depict his vehicle.  A white motorcycle helmet was found next to his vehicle, but did not belong to him.  He checked the chassis number of that motorbike and confirmed it was his.  He also confirmed that since his vehicle had been stolen, it had been modified.  It no longer needed a key in the ignition to start the engine.  He found an “on/off” switch had been installed near the front at the head of the bike which replaced or bypassed the ignition key.  His evidence was not challenged.

12.  PW2, PC161, was on patrol near Fung Wah Estate car park with PC1908, PW6.  They did not walk together.  PW2 gave evidence of a briefing earlier that day which instructed him and others in his team to patrol the Chai Wan estates to look out for vehicle theft activity.

13.  At about 6.10 pm he saw the defendant walking and he put him under observation.  He saw the defendant walk into the area under the footbridge stairs where several motorcycles had been parked. That area can be seen in Exhibit P17, photographs 1 to 4.  He watched the defendant use his right hand to touch the front part of a white motorcycle parked there.

14.  At that time the police did not know that the vehicle RT‑4352 was a stolen vehicle.  PW2 then thought the defendant had spotted him watching him some 15 metres away.  As a result, PW2 said to the defendant, “I am police,” and got out his warrant card because he was plain‑clothed.

15.  The defendant turned away, to walk away quickly.  It meant PW2 had to chase him and stop him some distance away.  He brought the defendant back to the motorcycles.  By then his partner, PC1908, was by his side to assist him.  PW2 checked the defendant’s identity card and asked him if the motorbike belonged to him.  The defendant said yes.  PW2 searched him, but found no key or driving licence, which made him more suspicious.  The defendant insisted the bike was his and he had bought it from an unknown man.

16.  The defendant showed PW2 how to turn on the bike with the “on/off” switch at the front of it; there was no need for a key.

17.  PW2 then called the console to check the bike’s registered owner, and was informed it was reported stolen.  He arrested the defendant for taking a conveyance without authority.

18.  Under caution, the defendant still insisted he had bought the bike.  PW2 reminded him of the caution he had just administered, and asked him what else belonged to him.  The defendant said the white helmet placed on the ground next to the vehicle belonged to him, and that he had thrown away the tailgate box.  He said he threw it away in the car park of Wan Tsui Estate.  The police found it there as a result of what the defendant told PW2.

19.  PW2 was worried that the defendant would try and escape, so he cuffed him, and called for a police vehicle to pick him up.  He was taken to Chai Wan Police Station.  Not long after, PW2 wrote out a post-recorded statement from his notebook at the station, but the defendant refused to sign it.  It is Exhibit P2 and P2A.

20.  PW6, his partner’s, evidence was similar.  He saw the defendant walk up to the vehicle and touch the front of it.  He saw him suddenly turn and walk away quickly.  PW6 saw PW2 chase after the defendant and stop him.  He then went forward to assist PW2.  He guarded the defendant whilst PW2 made inquiries.

21.  After the defendant was arrested, PW6 searched the motorbike in front of the defendant, with nil result.

22.  PW3, WPC7182, was with other team members in the Chai Wan area on the same anti-vehicle theft operation.  The area included Hing Wah Estate and Fung Wah Estate.  She was in Hing Wah Estate when she was told to go to Fung Wah Estate because somebody had been arrested.  She walked over there.  She was then instructed to go to Wan Tsui Estate car park to look for a rear tail box for a motorbike.  She found it at 6.40 pm and guarded it until about 10 pm that evening.  She confirms, from Exhibit P17, photographs 15 to 19, that she found that Kone rear tail box in that car park as depicted, on the ground.

23.  PW4, WPC13257, was on patrol in Hing Wah Estate when she was told at 6.20 pm to go to Fung Wah Estate.  She took a taxi there with Sergeant 45692.  She was instructed to guard a motorcycle and a white helmet from 6.35 to 10.25 pm.  She saw the defendant there, but was not sure what had happened before she arrived.  She recalls four officers going from Hing Wah Estate in pairs and separately.  When she arrived at Fung Wah Estate there were four other officers already there.

24.  PW5, DPC12762, took photographs of the vehicle and the rear tail box in the two separate estates, Exhibit P17.  He seized a mobile phone from the defendant.  He also arranged for PW1 to identify the rear tail box and the motorcycle.  He was not at the scene when or after the defendant was arrested.

25.  The evidence of PW3, PW4 and PW5 were not challenged by the defendant.

26.  PW7 was not on the witness list, but picked out as relevant by the defendant at an identification process carried out on the first day of trial.  The entire team was assembled for the defendant to identify.

27.  PW7, Sergeant 34269, was tendered for cross‑examination. His evidence was that he left Chai Wan Station with the others in a white seven-seater vehicle.  He could not recall who was in the vehicle.  He did recall PW2 and PW6 were dropped off at Fung Wah Estate and the rest got out at Hing Wah Estate Phase 1 and 2.  He had no idea where the seven‑seater went to or parked.  When he was informed a male had been arrested, he was in Fung Wah Estate and walked over to PW2 and PW6, who were with a man.  He heard them discussing a motorbike and whether the male was the owner.  He did recall the defendant had no car key on him, nor any money.  He said the white seven‑seater arrived later with some colleagues in it, driven by Sergeant 58747, the only one with a driving licence.  He could not be more specific as he did not recall when the white vehicle arrived and who was in it.

The Defence Case

28.  Despite the defendant representing himself, he articulately put his case.  It is clear, from what he asked PW2, PW6 and PW7 in cross-examination, what his case was, and allegations put were succinct.

29.  The defendant put his case to these three most relevant witnesses and elected to give evidence.  On 24 December 2014, he was preparing to move into a flat in Sau Fung House, Fung Wah Estate.  He was in it, cleaning, that day.  He was also in the process of breaking up with his girlfriend, and did not want to discuss it with her in front of two friends who were with him in the flat.  He left them and went downstairs to call her and talk to her privately.  He had no money on him, only his mobile and identity card.  He was trying to type messages to her on his mobile, but she was not responding.

30.  He was walking aimlessly when he got to the car park, as seen in photograph 1 of P17.  He passed a white seven‑seater vehicle parked in a space numbered 403, as seen on a sketch he drew of the car park, Exhibit D1.  He noticed that all the backs of the seats were down, so he walked up to it.  He saw four people, all lying down, in the vehicle.  He shouted and swore at them through the window, “What are you doing here?”  In the vehicle was PW2, PW6 and PW7.  The defendant said PW7 got out of the vehicle immediately and revealed his police identity.  PW7 pushed the defendant and asked him what he was doing.  They argued and swore at each other.  There was some pushing and shoving.  The other three officers got out of the vehicle and verbally abused the defendant.

31.  PW2 then cuffed the defendant and he was arrested.  The defendant heard PW7 say that they would frame him for stealing the motorbike.  No officer asked him any questions.  The defendant said that there was another officer sat on a green motorbike parked nearby.

32.  The defendant’s case is that the police have framed him for this offence.  He never approached the stolen motorcycle.  He never told the police that the bike was his, that he had bought it and he threw the rear tail box away earlier, nor that the helmet on the ground was his.  He explains why he approached the white seven-seater vehicle.  He says he is a rude person, grew up in Chai Wan, was in a bad mood, and thought the occupants of the vehicle were acting furtively.  He did not know that they were police officers.

The Law

33.  The prosecution has the duty to prove the elements of the charge beyond reasonable doubt.  The defendant has nothing to prove.  The prosecution must prove the defendant handled the stolen goods. Knowing or believing it to be stolen, he dishonestly received the motorbike.

34.  The prosecution alleges there is clear evidence of possession by the defendant of the motorcycle despite his denial.  The prosecution rely on the defendant’s actions, proximity to the motorcycle, and his admissions or explanations under interrogation to prove he handled it by receiving it.

35.  The defendant does not challenge the fact that the motorbike had been stolen after 7 pm on 22 December 2014 from Wan Tsui Estate.

36.  If the prosecution can prove the defendant was in possession of it and received it, they must go on to prove the defendant received it dishonestly; knowing or believing it was stolen.  Where the only evidence against the defendant is that he was in possession of stolen property, the doctrine of recent possession comes into play.  It can be evidence from which the court can infer the defendant is the guilty handler of stolen goods. The court can infer guilty knowledge if there is no explanation to account for possession or any explanation is untrue where suspicious circumstances exist.

37.  I referred myself to Archbold Hong Kong 2015 edition paragraph 22-250, page 1532 and 1533.

My Findings

38.  I have carefully considered the evidence and submissions made.  I am sure the prosecution proved the defendant was in possession of the stolen motorbike.  I am sure he approached the motorbike, parked under a bridge, and touched the front of it.  I am sure the helmet on the ground was his, and he tried to convince the police he owned the bike.

39.  I believed the police officers’ evidence, and when I considered their evidence, I found no discrepancy so serious it made me doubt their evidence.  I found no contradictions or omissions that led me to doubt their credibility.  I am sure without the defendant telling PW2 he bought the bike from an unknown male and had discarded the rear tail box in Wan Tsui Estate, the police would not have found it there that evening.  In fact, the defendant’s admission led them to locate the Kone Elevator rear tail box.  How else would the police officer, PW3, have known to go and look there?  I am sure this information came from the defendant.  I am sure PW2 did not fabricate this.  I am sure the defendant said this in an attempt to prove or legitimise his explanation that he had bought the motorbike but discarded the rear tail box.  However, in reality, it had had the opposite effect.

40.  I find he was in possession of a stolen motorbike two days after it had been stolen.  I find that he gave the police an explanation that he had bought it from an unknown male.  I am sure he told the police where he had left the rear tail box and it was in the same estate from where it had been stolen from.  That action and that vague explanation point to a guilty knowledge, in my findings.

41.  I am sure it was the defendant who discarded the rear box because it was an incriminating piece of evidence.  It had “Kone Elevator” written across the rear tail box.  Even if the defendant had paid for the bike, he must have known it was stolen.

42.  This is not a case of being suspicious or turning a blind eye to the circumstances.  There is no doubt in my mind he knew, but tried to convince PW2 of his innocence.  He would not have had to try and explain if PW2 had not caught him red‑handed dealing with and in possession of that motorbike, a motorbike the ignition had been tampered with and no longer required a key to turn it on.

43.  I do not doubt PW2, PW6 and PW7 were telling the truth.  I do not believe the defendant was framed.  I do not believe the police knew RT‑4352 had been stolen and lay down in a vehicle that was not visible from the position of the motorbike and waited for someone to ambush.  I do not believe there was a police officer on a green motorbike nearby.

44.  It is far-fetched to believe the defendant would pick a fight with PW2, PW6 and PW7 and another officer which led them to choose him to frame for the stolen bike that they had happened upon.

45.  I reject the defendant’s evidence in its entirety.  It is inherently improbable.  I do not believe a man preoccupied with getting through to his girlfriend on his mobile phone, a girlfriend he was in the process of breaking up with, would approach a vehicle and four strangers and swear at them without any provocation or reason.  Even after he knew they were police officers, he continued to argue and struggle with them.  It is a fabrication to explain why the police would frame him for this offence, and it is far‑fetched.

46.  The defendant makes much of the white seven‑seater vehicle and submits his evidence must be credible because he knew about this vehicle.  PW2 does not recall seeing the white vehicle after he arrested the defendant, but believes some colleagues came to assist him in this vehicle. After all, it was their team vehicle, and would have been nearby.  PW7 asked other colleagues to make their way to the scene of the arrest and had an impression a white vehicle did arrive there with colleagues in it.  PW7 did not know who came in this vehicle.

47.  I reject the defendant’s submission.  This vehicle was used to transport this team, so I am sure it would have been nearby and would have appeared after an arrest was made.  That would explain why the defendant had sight or knew of this vehicle.

48.  The defendant also makes much of the fact the police did not retrieve CCTV near the car park.  The police did not go to retrieve it.  They thought there was no need.  That is not fatal to the prosecution case.  The same applies to the lack of fingerprint evidence on the motorcycle.  Again, that is not fatal to the prosecution case.

49.  I consider everything the defendant had to say in submission, both his submission of no case to answer and his final submission.  Nothing convinces me to doubt my finding that the prosecution witnesses were all credible.

50.  I take into account any inference I draw detrimental to the defendant must only be drawn if it is the only reasonable inference to be drawn.  The inference must be compelling, and one, the only one that no reasonable man could fail to draw from direct facts proved.

51.  I am sure the prosecution can prove the defendant approached a recently stolen motorcycle fitted with a new “on/off” switch on the front of it that bypasses the necessity of a key.  I am sure he was seen touching the front of it, and there was a helmet on the ground already.  I am sure the defendant turned to leave when he knew he was being watched. He then tried to convince the police officer, PW2, that he had bought the bike and it was his property.  A check by PW2 quickly proved otherwise.  He tried to prove his ownership by telling the police he had removed a rear tail box and left it elsewhere.  The police immediately set out to locate it.  It was found in the same estate where the whole motorcycle had been stolen, put on the ground in a car park, containing tools.

52.  I am sure his explanation is untrue, and I infer from this and all the other evidence from the prosecution that I find credible that the defendant had knowledge the motorcycle had been stolen, and dishonestly received it.

53.  He tried unsuccessfully to distance himself from any wrongdoing.  In this trial he tried to distance himself even further by alleging misconduct on the part of the police and fabrication of their evidence.  He is again unsuccessful.

54.  The prosecution, I find, can prove the elements of this offence beyond reasonable doubt.

55.  Accordingly, the defendant is convicted as charged.