HKSAR v. MOHAMMED, JAQUB BALOCH

HCMA 73/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 73OF 2015

(ON APPEAL FROM TMCC 4055 OF 2013)

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JUDGMENT
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1.  The appellant was convicted after a 4-day trial before a deputy magistrate[1] (the magistrate) of one count of Theft, contrary to section 9 of the Theft Ordinance, Cap 210. The appellant was sentenced to 10 weeks imprisonment.

2.  The appellant was convicted of stealing a white Samsung Galaxy Note III mobile phone (mobile phone) at the Bubble Shop (the shop) at Yuen Long Plaza which belonged to Madam Yip (Yip), the saleslady, of the shop on 14 November 2013.  

Facts

3.  At about 6:30 pm on 14 November 2013, while Yip was at the shop, the appellant went in and showed interest in a suitcase.  The appellant asked for a new one so she went into the storeroom. 

4.  Yip found a new suitcase at the top of a shelf. She came back out to confirm the appellant was still there, then she went back into the storeroom and took the suitcase for the appellant.

5.  Later, the appellant showed interest in a larger suitcase, and checked with Yip of its availability.  Yip again went to the storeroom again and gave the appellant a rough estimate.  The appellant claimed that he wanted all of the suitcases, so Yip went into the storeroom again to take the suitcases out. 

6.  When Yip came out from the storeroom with the suitcases, the appellant had left the shop.  She soon noticed that her mobile phone which was placed on top of the desk close to the entrance of the storeroom was missing.

CCTV

7.  CCTV was installed at the shop and the relevant footages were recorded on a disc and produced as an exhibit P3.

8.  Due to the angle of the CCTV, it did not capture the storeroom or the entrance of it.  The CCTV did not capture the appellant taking the mobile phone.

9.  However, in the 32 second footage, the appellant was seen emerging from the bottom right corner of the screen where the storeroom was situated and slowly leaving the shop. 

10.  The appellant was the only one who could be seen in the shop during that period. 

Arrest & Caution

11.  Two days later, on 16 November 2013, while conducting patrol in plain clothes, PC 7278 (PW6) spotted the appellant at the junction of Kuk Ting Street and Castle Peak Road.  PW6 questioned the appellant regarding the offence and the appellant said he did it because he had no money.  The appellant admitted that he had stolen someone’s phone and knew that he was wrong.

12.  Under caution, the appellant said in Punti, “… I have sold the phone.  I will take you there to get it back”.  Then the appellant took PW6 to a mobile phone shop called “Chun For Kee” which was located at Shop D1, ground floor, Kwok Wah Mansion, 142-148 Castle Peak Road, Yuen Long (mobile phone shop). 

13.  PW2, the owner of mobile phone shop confirmed that on the offence date, at about 7:00 p.m. the appellant had sold a white Samsung Galaxy Note III to him (same model and same colour as Yip’s phone) at the price of HK$3,900.

14.  A record of interview was taken from the appellant at the Yuen Long Police Station by DPC 10119 (“PW7”). 

15.  In the record of interview, the appellant stated that he was very remorseful that he went into the shop that night with the intention of buying a handbag.  However, he saw a white Galaxy Note III phone was put on the table near the storeroom.  Without the staff of the shop being aware of it, he had stolen the phone out of greed.  The Appellant stated that he had subsequently sold the phone for HK$3,900. 

16.  The magistrate ruled both the post-recorded cautioned statement and record of interview were made voluntarily and admitted them into evidence. 

Defence’s Case

17.  The appellant was unrepresented at the trial. He elected not to give evidence on both the special and general issues. 

18.  As noted in the magistrate’s statement of findings[2] the defence case was contradictory.  The appellant had denied taking Yip’s mobile phone and yet conflictingly stated Yip allowed him to take away the mobile phone to settle a debt she owed to him.  The appellant claimed that he had an intimate relationship with Yip.  The appellant alleged that there were two other salespersons in the shop at the material time and it was not possible for him to take the mobile phone without the two salespersons knowing.

19.  In his closing submissions the appellant produced a document which he said was a mobile phone screen capture, exhibit D1 which contained personal particulars, including name, age, date of birth, HKID, mobile number, and address of Yip to support his assertion that he knew her. 

Findings by the Magistrate

20.  The magistrate found Yip to be an honest and reliable witness.  

21.  The magistrate believed her account that she did not know the appellant and that day was the first time she had met him.  He rejected the appellant’s case that he had an intimate relationship with Yip and she had permitted the appellant to take the mobile phone to settle a debt owed to the appellant.

22.  The magistrate accepted the events occurred as described by Yip, namely, she placed her mobile phone on top of the desk inside the storeroom as she went inside to look for suitcases for the appellant, when she came out, both the appellant and the mobile phone were missing.  The magistrate found that on this evidence alone, an irresistible inference could be drawn that the mobile phone was taken by the appellant.

Issue on appeal

23.  At the hearing of appeal it was clear that the only issue was one of dishonesty.  After clarification with the appellant, there was no dispute by the appellant that he was :-

(i) in the shop at all material times;

(ii) that he had taken Yip’s mobile phone; and

(iii) that he had sold Yip’s mobile phone.

24.  The only issue was if he had been dishonest when he took the phone.  The appellant claimed that Yip was his ex-girlfriend, he took her mobile phone with her consent as she owed him a debt.  The phone was in settlement of her debt.  The prosecution case was that Yip did not know the appellant and he dishonestly appropriated her phone.

Grounds of appeal

25.  Pursuant to the request of the appellant, the audio recording of the trial proceedings was obtained.  The audio recording covered a total duration of over 9 hours. 

26.  In his home made grounds of appeal dated 5 March 2015, the appellant raised several grounds of appeal which can be categorised as follows:

(1) Yip was not a credible witness;

(2) Yip was the appellant’s ex-girlfriend;

(3) there were other staff inside the shop at the material time, including a male called Terry, hence Yip’s version was untrue;

(4) the magistrate in his statement of findings did not address the snap shot (exhibit D1) he had of Yip’s personal particulars;

(5) the appellant was unrepresented at the trial and the magistrate ignored his request to be legally represented;

(6) an Urdu Interpreter was not provided to him during his trial;

(7) the magistrate commenced the trial when the appellant did not have the case bundle;

(8) no identification parade was held to identify the appellant;

(9) the magistrate erred in relying on the 32 second CCTV footage to substantiate the theft; and

(10) PW2, the owner of the shop was not credible.

Analysis

27.  I turn first to deal with the complaints of the appellant in relation to the trial.

Grounds 5- denial of legal representation at trial

28.  The Appellant complained that he was not legally represented at the trial and his request for legal representation was ignored. Originally the appellant was legally represented by the Duty Lawyer Service (DLS).  However prior to the commencement of his trial on 15 December 2014, the DLS informed the court that the appellant had declined its services. 

29.  On the first day of the trial on 22 December 2014, the magistrate asked the appellant whether he intended to represent himself or whether he wanted legal representation.  The appellant confirmed that he wanted to represent himself.  The appellant was not denied legal representation. There is no merit in his complaint that his request for legal representation was ignored.

Ground 6 – no provision of an Urdu Interpreter

30.  The Appellant complained that an Urdu interpreter was not available to him until after the trial had commenced.  An Urdu interpreter was made available to the appellant when the trial began. Shortly after the commencement of the trial the appellant informed the magistrate that he elected to use English and did not need the services of the Urdu interpreter.  After clear confirmation from the appellant that he did not require the Urdu interpreter the magistrate then excused the interpreter.  After the lunch adjournment the appellant requested for the Urdu interpreter to be present.  By this time the interpreter had left.  The magistrate made arrangements for an interpreter to be available as soon as was possible but refused for the reasons stated below[3] to grant an adjournment of the hearing to wait for the arrival of the interpreter.  He continued with the trial.  Approximately an hour and a half later an Urdu interpreter arrived at the hearing and was made available to the appellant.

31.  The time the appellant was without an interpreter was for approximately one and three-quarters of an hour on the first day of the trial.  In that time, the proceedings were conducted in English, the language of his choice. 

32.  The appellant elected to conduct the hearing of this appeal in English.  An Urdu interpreter remained in court should the need have arisen for the interpreter to assist the appellant, however no assistance from the interpreter was required.  I was of the opinion that the appellant had no difficulty understanding, nor making himself understood in English. 

33.  The appellant’s choice of language at his trial was English, there was no evidence that he was having difficulties with the language of his choice.  I see no merit in this ground.

Ground 7 – no case bundle

34.  At the commencement of the evidence on the first day of the trial the appellant complained that he did not have his case bundle with him because his bundle was kept by the Correctional Services Department (CSD) and he did not want to proceed with the trial until he received his bundle.

35.  The magistrate made clear to the appellant that he refused to grant the appellant an adjournment of the trial as the case was first brought up on 28 November 2013 and more than a year had elapsed.  The case had previously been adjourned on multiple occasions for various reasons.  The magistrate was not prepared to adjourn nor delay the case any further.  The magistrate further noted that the appellant had terminated his legal representation at least a week prior to trial and the case papers were available to him whilst he was in the custody of the CSD.  The magistrate continued with the trial.

36.  By the afternoon of the first day of the trial, the prosecution provided the appellant with the relevant case papers.  The appellant was without the case papers for approximately 15 minutes of the evidence given during the trial.  I found no merit in this ground.

Ground 8 – no identification parade held

37.  The appellant complained that there was no identification parade held to identify him.  Further there was no evidence that he had been identified by Yip, nor the mobile shop owner at trial.  In the present case there was no dispute of the appellant’s identity.  There was no dispute that that he was at the shop, that he took Yip’s phone and sold it to the mobile shop owner.  There is no merit in this ground.

Ground 9 – magistrate’s reliance on CCTV footage as proof of theft

38.  At the hearing of this appeal it was confirmed that the 32 second CCTV footage did not reveal the moments just before the appellant finally left the shop.  It was the appellant’s case that because the 32 seconds CCTV footage was played at trial, the magistrate was led to believe that it was his last appearance at the shop and thus the magistrate relied upon it to convict the appellant.

39.  The appellant submitted that in the 32 second footage it showed him holding Yip’s phone.  It was his case that he had left the shop and returned to the shop holding Yip’s phone and he was in fact holding Yip’s phone in his hand for almost 20 minutes whilst he was inside the shop. If he had stolen the phone he would not have remained in the shop.

40.  Having viewed the 32 second footage, I was only able to see a small white dot, instead of a white phone as alleged by the appellant. Even assuming that the appellant was holding a white phone in his hand, there is no evidence pointing to the identity of the owner of the phone.  

41.  In any event the magistrate did not rely on the CCTV footage to find that it was at that time that the appellant had left the shop with Yip’s phone.  There is no merit in this ground. 

Ground 10 – PW2, mobile phone shop owner’s credibility

42.  The appellant challenged the credibility of the owner of the mobile phone shop, PW2.  There was also no merit in this ground as it was clear that at the trial and at this hearing the appellant did not deny he had sold Yip’s phone to PW2. 

Ground 3 – other staff in the shop at the material time

43.  The appellant contended that there were other salesmen in the shop at the material time and Yip was not as she claimed alone at the shop when the appellant took her phone.  The magistrate noted at paragraph 8 and 10 of the statement of findings the presence of other staff at the shop. He said the following : -

“ 8. Pw1 was cross examined by D.  Under cross examination she agreed one shop staff “Ah Man” from a nearby related shop came to assist when there were a number of customers in the shop and when her colleague Terry was absent from the shop going to the toilet.

…..

9. In re-examination Pw1 clarified that her colleague Terry was originally in the shop with her but went to an outside toilet before D came.  Terry later returned when D was still in the shop, and then D said D’s mother couldn’t find her way to the shop, so Terry accompanied D to go out of the shop to look for D’s mother, but they quickly came back, and then D asked Pw1 to ask Terry to go out to pick up D’s mother, so Pw1 asked Terry to go out to look for D’s mother, while D remained in the shop with Pw1 and continued looking at the items displayed in the shop.”

44.  From the evidence which the magistrate accepted, Yip was alone at the shop shortly before Yip noticed her mobile phone had gone missing.  There was no evidence that either Terry or Ah Man was in the shop at the time shortly before Yip’s phone went missing.  There is no merit in this ground.

Ground 4 –personal particulars of Yip in exhibit D1

45.  The magistrate did not address exhibit D1 in his statement of findings.  It is not clear what Exhibit D1 is, despite the appellant claiming that it is a snap shot from his mobile phone.  The document produced contains Yip’s name and personal particulars, including her Hong Kong identity card number, home address and mobile phone number.  Mr Pierre Lui for the respondent submitted that all of the personal details of Yip included in exhibit D1 could be found on her witness statement and the appellant may have obtained them in that way.  

46.  This document was submitted to the magistrate in the appellant’s closing submission.  The prosecution did not object to its production.  Even if this document was admissible as to the truth of its contents there was no evidence as to its source or how the appellant came to be in possession of the document or its contents, little or no weight can or could have been attached to this document.  For these reasons there is no substance in the appellant’s ground that the magistrate did not address it in his findings.

Ground 1 & 2 – Yip was not a credible witness and she was the appellant’s ex-girlfriend

47.  It was the appellant’s case that Yip was his ex-girlfriend.  She had given him the phone to repay a debt she owed him.  She was not a credible witness as she was untruthful about her relationship with him and who was in the shop at the material time. 

48.  The magistrate had stated[4] the appellant had searchingly cross-examined Yip on the fact that they had known each other before that day, they went out together for meals, to watch movies, were boyfriend and girlfriend and had an intimate relationship.  Yip had denied all the allegations.  She stated that she did not know the appellant and the first time she met him was on the day her phone went missing.

49.  The magistrate had the advantage of seeing and hearing Yip give evidence at first hand.  He carefully and thoroughly assessed all the evidence before him.  He was fully justified in reaching the conclusion that Yip was an honest and reliable witness. 

The appellant’s admissions

50.  The magistrate held a voir dire on the admissibility of the admissions made by the appellant.  The magistrate found them to be made voluntarily and admitted them into evidence.  The admissions were to the effect that the appellant had taken the phone of one of the staff at the shop without the staff being aware of it.  He stole the phone out of greed, then sold it for HK$3,900.  

51.  The magistrate convicted[5] the appellant without relying on the admissions.  He was entitled to do so in light of the evidence.

52.  The admissions were however adduced into evidence.  The hearing of a magistracy appeal is a re-hearing before the magistrate supplemented by any fresh evidence which the appellant court might admit.  The appellant admitted that he took Yip’s phone without her knowing and he stole it out of greed.  That was contrary to the appellant’s case.  It was an admission by the appellant that Yip did not know that he had taken her phone.  In giving full weight to these admissions the element of dishonesty is further satisfied.

Conclusion

53.  The Magistrate was fully entitled to have convicted on the evidence and, having reviewed the evidence with care, I am satisfied and sure that the case was properly established against the appellant and the conviction was neither unsafe nor unsatisfactory. 

54.  The appeal against conviction is dismissed.