HKSAR v. ANSIR MAHMOOD

DCCC1152/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1152 OF 2011

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Reasons for Verdict

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1. Defendant, you pleaded not guilty to a single offence of handling stolen goods, namely four motor vehicles, contrary to section 24 of the Theft Ordinance, Cap.210.

2. The prosecution case as embodied in the lengthy opening was as follows.

3. At about 0547 hours on 6 July 2011, Detective Sergeant 45653 (PW5) and other officers went to the 2nd Floor, Green Villa, Block 21, 100 Leung UK Tsuen, Kam Tin Road, Yuen Long, to execute a search warrant. At that time, you and your wife were present.  You were the occupying tenant under a tenancy agreement between 1 November 2009 and 31 October 2011 (P3). DPC53448 (PW6) drew a sketch of the layout of the premises (P2). 

4. The following items were seized during the search:

(a) Eight bundles of keys (P4) from a drawer in the cabinet.

(b) A blue plastic folder containing 23 sets of vehicle registration documents from the same drawer (P5).

(c) Nine keys (P6) from a pair of trousers laid on a chair.

5. You admitted to ownership of P5.

6. At 0600 hours, DPC52890 (PW7) arrested you for conspiracy to handle stolen goods.  Under caution you said in Punti you had nothing to say.

7. At about 0840 hours, you were escorted to a garage at Lam Kam Road, Pak Heung, Yuen Long.  Two of the keys seized from the male trousers (P6) could open the metal gate and padlock.

8. PW5 and other officers under the authority of a search warrant (P7) searched the premises of which you were the tenant and occupier under a tenancy agreement of 1 November 2010 to 31 October 2012 (P9).  PW6 drew a sketch (P8).

9. The search led to the seizure of the following:

(a) Three boxes of metal stamps found in an air-conditioning window bay:

(i) 27 alphabetical metal stamps (P10);

(ii) 9 numerical meal stamps (P11); and a further 9 numerical stamps (P12).

(b) Four vehicles:

(i) a blue Subaru Impreza Wrx with a tampered chassis number of GC8-027800, and a tampered engine number of 221459, and a false rear registration plate GN8929 (P13);

(ii) a silver Subaru Impreza Wrx with a tampered chassis number of GC8-058212 and no engine block (P14);

(iii) a black Toyota Harrier with a tampered chassis number MCU10-00 and false rear registration number plate of NT3096 (P15);

(iv) a silver Toyota Prado with a tampered chassis number of JT111VJ950003, two ground digits, then a 2, and a further ground digit (P16).

10. At 1116 hours PW7 further arrested you for handling stolen goods, and in Punti under caution you said you had nothing to say.

The four lost vehicles

11. Mr Chan Wai-chung (PW1) is the owner of a blue Subaru Impreza Wrx, registered number NC7112, chassis number GC8-058032 and engine number 958665.  It was stolen from an open car park in Tuen Mun between 15 and 30 December 2010.  On 7 July 2011, PW1 identified the vehicle as P13. PW1 did not know you and had never loaned, sold or authorised the car to be used by you in any way.

12. Mr Lam Sik-ping (PW2) is the owner of a silver Subaru Impreza Wrx, registered number NW7531, chassis number GC8-079933, and engine number 472618.  It was stolen from an open car park in Tung Chung on 19 October 2010.  On 7 July 2011, PW2 identified it as P14.  PW2 did not know you.

13. Miss Lai Chi-hang, Maggie (PW3) is the owner of a black Toyota Harrier, NH98855, chassis number MCU10-0052923 and engine number 1MZ4372580.  It was stolen from an open car park in Hung Hom between 20 and 31 March 2011.  On 7 July 2011, PW3 identified the vehicle as P15.  PW3 did not know you.

14. Mr Cheung Wa-chong (PW4) was the registered owner of a silver Toyota Prado, registered number GV166, chassis number JT111VJ9500033020, engine number 5VZ-0579138.  It was stolen from an open car park in Sham Shui Po on 24 March 2011.  On 7 July 2011, PW4 identified it as P16.  PW4 did not know you.

Examination of the seized vehicles

15. Mr Yeung Wai-ching (PW12), a vehicle examiner of the Transport Department, examined the four vehicles:

(a) P13 showed signs of tampering on the chassis and engine numbers;

(b) P14 showed signs of tampering on the chassis number;

(c) P15 showed signs of tampering on the chassis number; and

(d) P16, signs of tampering on the chassis number also.

16. Mr Wong Tai-wai (PW13), a Government Chemist, examined the four vehicles and found the following in his statement at pages 25 to 28 (P13):

(a) The alignment and appearance of the chassis number of GC8-027800 was found to be inconsistent with a genuine Subaru chassis number. Examination revealed that part of the apparent chassis number had been overlapped with other digits. This indicates the chassis number had been tampered with. Restoration by chemical etching revealed the original chassis number as GC8-058032.

(b) The alignment and style of the engine number 221459 were found to be different from a genuine Subaru engine number, indicating it had been tampered with. Chemical etching revealed the original engine number of 958665.

(c) The original chassis and engine number of P13 corresponded to PW1’s vehicle NC7122.

17. P14:

(a) The alignment and appearance of chassis number GC8-058212 was found to be inconsistent with a genuine Subaru chassis number. Close examination revealed part of the apparent chassis number had been overlapped with other digits. This indicated it had been tampered with. Restoration by chemical etching revealed the original chassis number as GC8-079933, which corresponds with P14, vehicle NW7531, belonging to PW2.

18. P15:

(a) Signs of grinding were found on the metal surface bearing the chassis number MCU10-00. Close examination revealed that part of the original number had been ground away. This indicates tampering. Restoration by chemical etching revealed the original chassis number as MCU10-0052923.

(b) The engine number was genuine.

(c) The original chassis number and the untampered engine number of P15 corresponded to PW3’s vehicle, NH9885.

19. P16:

(a) Signs of grinding were found on the metal surface bearing the ground digits in the chassis number of JT111VJ950003 ground digit 2 ground digit. Examination revealed part of the chassis number had been ground away indicating tampering. Restoration by chemical etching revealed the original chassis number to be JT111VJ9500033020.

(b) The engine number 5VZ-0579138 was found to be genuine.

(c) The original chassis number and engine number of P16 corresponded to GV166 which belonged to PW4.

20. PW13 also examined three sets of metal stamps, P10 to P12 inclusive, and found the style of digits of the metal stamps P12 was consistent with that of the tampered engine number of P13.  The tampered engine number had been made by stamps of P12.

The seized vehicle registration documents

21. Amongst the 23 sets of vehicle registration documents seized from the premises P5:

(a) 12 sets are in your name and the rest in the name of other persons.

(b) The vehicle registration document (P5A) relates to a Subaru Impreza Wrx, registered number GN8929, chassis number GC8-027800 and engine number 221459. It was issued to you on 29 October 2010.

(c) A vehicle registration document (P5B) relating to a Toyota Levin, registered number NT3096, chassis number AE111-5027892 and engine number 4A-L173303, was issued to you on 18 February 2011.

22. The vehicle particulars, in view of PW13’s findings such as chassis, engine and registration number, were superimposed on P13 (see Exhibit 5A, registration document for GN8929) which belonged to you.

23. P15, a Toyota Harrier which was identified by PW3 as her lost vehicle NH9885, was seized by police from the garage.  That vehicle was found bearing the registration plate of NT3096, the number of your Toyota Levin (P5B).  Besides, there were signs of tampering with the chassis number of P15 and part of the original chassis number had been ground away (P27).

Your video recorded interviews

24. On 6 July 2011 at 2127 hours you were interviewed under caution which was recorded on DVD-ROM (that is P31, with transcript, P32 and 32A).  Inter alia, you said the following:

(a) You had rented the premises for about 1½ years;

(b) The trousers where the keys, P6, where found were yours.

(c) You had rented the garage for about 8 months.

(d) You had nothing to say about three sets of stamps (P10 to P12).

(e) The vehicle, P13, belonged to you and it was bought in Tuen Mun the previous year. You could not recall nor contact the seller.

(f) You had bought P14 in Pat Heung about 2 years ago. You could neither contact nor recall the seller. The vehicle was out of order.

(g) You had nothing to say about P15, nor about P16.

25. On 7 July 2011 at 1920 hours you were further interviewed.  The DVD-ROM is P34 and the transcript P35 and P35A.  Inter alia, you said the following:

(a) You bought P13 in September or October 2010. Since then it has been parked in the garage. You had nothing to say regarding the report to the police that it had been stolen in the period of 15 to 30 December 2010.

(b) You bought P14 in August or September 2009. It had been parked in the garage. You had nothing to say regarding the report to the police that it was stolen in October 2010.

(c) You had nothing to say as to why P15 was bearing a rear registration plate NT3096.

(d) You had nothing to say about NT3096.

(e) You had nothing to say about P15’s theft between 20 and 31 March 2011.

(f) Nor that of P16, that had been stolen on 24 March 2011.

26. Various photographs were taken (P36 to P41).

27. The prosecution case comprised the admitted facts (P42) and three live prosecution witnesses.

28. The admitted facts were admitted in accordance with section 65C of the Criminal Procedure Ordinance, Cap.221.  Those admitted facts were largely a mirror of the prosecution opening and effected the production of various exhibits and various statements of experts and of you yourself.  I do not need nor do I intend to repeat those matters.

29. Mr Chan Wai-chung, PW1, gave evidence as the owner of the blue Subaru Impreza Wrx (P13), NC7112, which had been stolen in December 2010.  He said he had bought it in 2009.  Mr Lam Sik‑ping, PW2, gave evidence as the owner of the silver Subaru Impreza Wrx, NW7531.  It was stolen on 19 October 2010, he had bought it in July 2009. 

30. DPC52890, PW7, then gave evidence.  He confirmed the seizing of various exhibits at the two locations referred to in the prosecution opening.  Also he referred to the photographs and the sketches. The keys found in your trousers opened the main gate and padlock of the garage. 

31. He described the condition they found the vehicles P13, P14, P15 and P16 to be in.  P13, the blue Subaru, had no front registration plate but later it was found to have a rear one of GN8924, registration document P5A refers.  P15 had a rear registration number plate of NT3096, and by its front, a broken registration plate of the same number, was found on the floor. Registration document 5B refers.  P13 and P14 chassis numbers were obviously altered and P15 and P16 chassis numbers ground. 

32. PW7 was cross-examined.  The entry into your flat was the culmination of an operation for about a month whereby your home and garage were watched.  PW7 could not recall how many times he had observed. He said there was no filming nor was he able to give any evidence about having seen you at the garage.  PW7 noticed no CCTV at the garage. 

33. PW7 said he had never heard of Barjesh Kumar but did recall a letter from a law firm dated 26 July 2011.  He could remember the contents.  It seemed it was about a person arrested.  When the letter (D3) was read to the officer, he said he recalled it.  However, he did not recall Barjesh Kumar even though he was named and had his unique prison number referred to. He said he discussed the letter with the OC case who said there was no need to interview him as you had not mentioned his name in your video recorded interview.  Kumar was never interviewed by the police.

34. The prosecution case was then closed and Mr Oderberg made a submission of no case to answer, which was opposed by Mr Yip for the prosecution.  For reasons which I gave in my ruling, I found that you had a case to answer and ruled accordingly.  That is part of the court record and I do not intend to repeat what I said.

35. You, having had your rights explained by counsel, elected to give evidence and called one defence witness.

36. On 6 July 2011, you agreed you were the tenant of the flat and the garage at Pat Heung.  You had various businesses, including a shop at Sham Shui Po selling second-hand electrical goods.  You also had the garage and another premises in Kam Tin for salvaging parts and recycling them. These two businesses were profitable.  The garage was used to buy second-hand vehicles which you sold to people or broke them up for parts.  In the 12 months up to July 2011 you sold 40 to 50 cars.  You agreed that the documents and keys seized by the police were yours, including the two keys which gave access to the garage.  You accepted the police found four cars in the premises - a blue Subaru, a silver Subaru, a Toyota Harrier which is mis-described, in fact it was a Lexus, and a Toyota Prado. 

37. You said prior to 6 July 2011 you had last gone to those premises 3 months before.  You had rented the garage out on 5 April 2011.  The reason for this was that an employee left the shop in Sham Shui Po so you were unable to manage all the businesses.  You rented the garage to an Indian, a Mr Barjesh Kumar, whom you had known for about 6 months, and who also dealt in cars.  You produced a signed agreement for the sub-letting of the premises dated 5 April 2011 (D1).  You said this had been written by Kumar as you yourself were illiterate.

38. Referring to the two Subaru’s, you said you left the two there covered up when you sub-let the premises.  PW1 said the blue one was his, its number being NC7112, and had been stolen between 15 and 30 December 2010.  However, the one that you had bought, GN8992, which you had acquired in the 10th month of 2010, and this was not your vehicle.  Yours had black rims and a spoiler on the back.  The number, however, was the same.  At the garage you had only seen the front not the back so you thought it was the car you bought in September/October 2010.  P5A was the vehicle registration registered to you on 8 October 2010.  You said you had parked it there and did not know what had happened to it.  You had not been to the premises and did not know where it was now.

39. P14.  You had parked a silver Subaru registered in your name on 22 September 2009, KM173.  The registration document was produced as D2.  Referring to P14, you said the vehicle had a net on the front and inside the light was white.  You noted PW2 said that the Subaru was NW7531 and had been stolen on 19 October 2011.  You knew nothing of this vehicle.  You had not seen your vehicle KM173 and did not know what had happened to it.  That vehicle had been registered to you a year before it was stolen.  You said you had only ever seen that particular Subaru from the side and from a distance at the garage.

40. As for P15, the so-called Toyota Harrier, you said you had never bought such a vehicle, Kumar must have brought it there, nor had you seen or brought the Toyota Prado there.  You had a Toyota Levin with the number of NT3096.  You had bought some new plates for it and left the old ones at the garage.  One of the plates had been broken. 

41. When Kumar sub-leased the garage you said you gave him a set of keys to the premises.  A baby chair you identified was your property.  Referring to Photo 2B of book 3 (P12), you said this was not the car that you left.  Yours had no gearbox nor engine.  The wires in fact were black and not orange and the car shown in the photo did have a gearbox.  You said in your opinion the engines and gearboxes of the vehicles were not interchangeable.  You said you had never seen the stamps before shown in Photos 28 and 29 of book 2. 

42. You went on to say that you were on remand at Lai Chi Kok in July last year when you came across Barjesh Kumar.  He was on remand for truck theft.  You found out his full name and prisoner number, which you wrote down.  Now you had no idea where he was.  This resulted in the letter of 26 July sent by solicitors. 

43. You accepted that at the time of your interviews you had not told the police of the sub-letting and that you had said only your wife had keys as well.  The reason, you said, was that you were afraid of Kumar, who you thought would hurt your wife and relatives.  Again, the reason for this was that you say you had seen Kumar at a restaurant with two to three persons whom you knew to be gangsters.  You had disclosed his name to the police, the Department of Justice and the court in July when you saw him on remand and believed he was no longer a threat.  You gave the court a description of Kumar.  The letter from Ivan Tang & Co. was produced as D3.

44. You were then cross-examined.  Little emerged except that you could not explain how the chassis number and engine number of GN8929, P5A, came to be placed on P13, nor the rear plate at the rear of GN8929.  The rental on the sub-let was $9,500 plus $500 for electricity, but Kumar, after paying the initial deposit of $20,000 on 5 April, had paid nothing else.  You claimed you had not pushed him for payment apart from some telephone calls. 

45. You accepted you had told the police P13 and P14 were yours.  In fact, you did not go near either vehicle, only viewed them from a distance. 

46. The ones you described as gangsters, you said you had seen them fighting in a bar in Kam Tin.  They had beaten people up. 

47. You said it was the usual practice to keep a set of keys when sub-letting, and that you had obtained the verbal permission of the landlord to sub-let.

48. There was no re-examination.  Mr Oderberg then indicated that you had decided not to call any further witness and the defence case was closed.

49. Mr Yip for the prosecution, Mr Oderberg for defence, made brief but comprehensive and helpful final submissions, which I took fully into account when reaching my verdict.

50. I turn now to the verdict.

51. Defendant, you face a single charge of handling stolen goods, namely four cars, the property of PW1 to PW4, and exhibited as P13 to P16. 

52. This is a somewhat strange case in that the prosecution case was accepted in its entirety that is as to what was found by the police at your home and the garage premises; Also, you being the tenant of both properties.  Your video recorded interviews are not challenged on grounds alleging non-voluntariness nor impropriety by police, nor is there any suggestion of the breach of the rules and directions for the questioning of suspects and the taking of statements. 

53. The case against you is, on the face of it, formidable:

1. At your home the police find the following:

(a) car keys;

(b) registration documents; and

(c) keys relating to the garage premises.

54. At the garage premises the police find the following:  four stolen vehicles, the two Subaru’s, accepted by you at that time as the owner - P13 with a tampered chassis number and engine number; P14 with a tampered chassis number; P15 with a tampered chassis number; P16 with a tampered chassis number.  Also, the stamps are found.  In your video recorded interview you allege that only you and your wife had keys for the premises, that is the garage.  Whilst noting and accepting your right to say nothing, you never at that stage mentioned sub-letting.

55. Your case is simple.  As from 5 April 2011 the garage had been sub-let to one Kumar because you could not run that plus your electric shop in Sham Shui Po and the other car business in Kam Tin.  You therefore wanted to cover the rental plus electricity.  In support of this you produced a written agreement setting out the fact and terms of the sub-let, which is D1.  You say it was written by Kumar and signed by you both.

56. Further, you allege that none of the four vehicles belong to you.  You were mistaken in regard to the two Subaru’s, which being the same make and colour as the two you had owned for some time prior to arrest were in fact not the same ones.  The mistake arose because at the scene you were not able to examine them closely. 

57. The blue one had been acquired in October 2010, which is prior to the theft.  It had a black rim and a spoiler on the back. The registration document of this vehicle was P5A.  You had no idea where it is now.  You had left it at the garage and that is the last you had seen of it. 

58. The silver Subaru had been purchased on 22 September 2009, well before the theft.  Yours had a net on the front, inside, the light, it was white, and had no gearbox, unlike the one shown in Photograph 2B of book 3.  Also, the wiring, or piping as it was described, was black and not orange.  The registration document is D2 and its number was KM173.  Again, you had no idea where it was now.  It too had been left at the garage and that was the last that you had seen of it.

59. The other two vehicles were not yours; in fact, P15 bore a number plate at the rear and had a broken one in front of it which belonged to a Toyota Levin that you yourself still owned.  These plates had been left behind at the garage, one having been damaged in an accident.  This was NT3096, registration P5B refers.

60. Between 5 April 2011 and 6 July 2011, you had never been to that yard.  You had kept keys as the head tenant.  You had not told the police of the sub-letting to Kumar because you had seen Kumar in the company of gangsters and feared for the safety of your family.

61. The letter of 26 July 2011 was written on your instructions by solicitors to police, Department of Justice and the court, and had been based on the fact that Kumar was on remand for truck theft and therefore in your mind the threat had become neutralised.

62. In cross-examination it emerged that Kumar had not paid rent apart from the deposit of $20,000.  You had only contacted him or tried to contact him by telephone. 

63. I have to tell you that your version did not inspire confidence.  However, having said that, there is of course no burden of proof on your shoulders.  That is firmly on the shoulders of the prosecution. 

64. Whilst the prosecution were able to raise suspicions and question marks, there are six matters which weigh heavily against the prosecution:

(1) At the garage, other than the stamps, there was no other paraphernalia associated with tampering with motor vehicles found.

(2) Surprisingly, PW7 could not say if there was any CCTV in the yard or not.

(3) No forensic evidence was produced that linked you to the yard, though this may be of peripheral importance.

(4) And this is perhaps the most important point, by PW1’s evidence, we know that your home, and more importantly, the garage were under surveillance yet no evidence was produced to show that you had ever been near the garage during the previous month.

(5) Also importantly, and an important weakness in the prosecution case, was the letter from Ivan Tang & Co., dated 26 July 2011, 20 days after your arrest, giving the full name of the person to whom you claimed to have sub-let the garage, his location and his unique prison number. Inexplicably, no investigation was carried out to try to ascertain the truth of your claim nor to neutralise claims by you saying that Kumar had sub-let your premises. PW7’s claim that this was because you had not mentioned him in your video recorded interview is not acceptable. This, in my opinion, is very, very poor investigation on the part of the police. Had Kumar been investigated, he could possibly have been a prosecution witness and your claims could have been neutralised.

65. To sum up therefore, I have to say that whilst I remain very suspicious of what took place, at the end of the day, even though you could not explain how P13 and P14 bore details of vehicles registered in your name, it seems to me that the case is not proved beyond all reasonable doubt.  That it is not proved that you had any dealings with that yard, and there remains a distinct possibility that the real perpetrator was this Kumar. There is a doubt.  You are entitled to the benefit of the doubt.  You have that doubt and the case is dismissed.