HKSAR v. ORTEGA MARCELO JR. ESPINOSA

DCCC 490/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 490 OF 2016

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REASONS FOR VERDICT

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1.   The defendant, D2 on the indictment and so termed throughout, faces one charge of attempted theft, contrary to section 9 of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Cap. 200. He has denied the charge. The charge relates to an attempted theft, together with D1 on the indictment and other persons unknown,from PW1 in these proceedings – more commonly referred to as attempted pickpocketing.  D1 admitted this charge at the outset, as well as charge 2 on the indictment of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115 and the summary of facts as they related to him. I was satisfied beyond all reasonable doubt that the facts he had admitted supported the charges that he had admitted and accordingly I convicted D1 on both charges.  Sentence had been adjourned until the conclusion of the trial of D2. There was no objection to my continuing to hear the trial of D2.

2.  As D2 speaks Cebuano, a Cebuano interpreter was made available to him throughout the proceedings, which were all translated into Cebuano for him.

3.  There were 2 prosecution witnesses. At the conclusion of the Prosecution case, no submission of no case to answer in respect of the charge was made by the Defence. I found that there was a case to answer on the charge. Having had his rights explained to him by his Counsel, D2 elected not to give evidence and called no witnesses.  That was his right, and I inferred nothing against him for exercising that right. After hearing final submissions from Counsel, I adjourned the matter to deliver my verdict. I have carefully considered all the evidence adduced before me as well as the submissions of Counsel for the Prosecution and Defence. I have borne in mind at all times that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt against D2.

Evidence

4.   Facts admitted by the Prosecution and Defence at the outset under Section 65C of the Criminal Procedure Ordinance, Cap. 221, were produced and marked as Exhibit P4. These disclosed, inter alia, that:-

a) At approximately 1.10 p.m. on 25/4/2016, PC 3196 arrested D2 at or near the Cheung Sha Wan MTR Station.

b) At the material time, D2 was the holder of a Republic of Philippines passport No. EC 1092560. D2 had entered Hong Kong as a visitor on 13/4/2016 and was permitted to remain until 27/4/2016.

c) At 5 p.m. on 25/4/2016, DPC 4883 took 5 photographs of PW1 Wong Hin-wing and his black cross-body bag. These photographs were produced by agreement and marked as Exhibit P1 (1) to (5).

d) At around 8.30 p.m. on 25/4/2016, DPC 9064 took 2 photographs of D2. The photographs were produced by agreement and marked Exhibit P1 (6) – (7).

e) The Immigration Movement Records of D1 and D2 were produced by agreement and marked as Exhibits P2 and P3 respectively.

f) D2 has a clear record.

5.  The Immigration Movement Record of D2, Exhibit P3,  shows that he entered Hong Kong on 15 occasions from 26/11/2015 to 13/4/2016 using his Filipino passport.  He last entered Hong Kong on 13/4/2016 and was permitted to stay until 27/4/2016.

6.  PW1, Wong Hin-wing, testified that at about 12.55 p.m. on 25/4/2016, he was at the Prince Edward MTR Station and he intended to take an MTR train to the Lai Chi Kok MTR Station – he was returning to his office.  At the platform, platform No. 1, he queued to board the train at Door No. 5 of Car No. 7 – when the train arrived and the doors opened, he followed others to board the train. There were 3 persons ahead of him in the queue.  It was lunchtime and he described the platform as busy.   He confirmed that photos 1 to 5 of Exhibit P1 depicted his clothing at the material time and the cross-body bag that he was carrying. The cross-body bag was also produced and marked as Exhibit P5.   He was also holding his mobile phone in his left hand and he was texting at the time. 

7.  When he was about to board the train, with one foot inside the train, a group of persons pushed him from behind – he could not see the number of persons in the group, but when he turned to look at them after he had boarded the train, he saw that some in the group were not Chinese. 

8.  After he entered the train carriage, he found that his way was blocked by someone in front of him – there was a lot of space behind this person – the male was facing PW1.  PW1 said that he saw the person was not Chinese, so he gestured with his hand for him to move further into the carriage.   PW1 said the male blocked him for about two seconds – he was wearing a white shirt with two chest pockets and short sleeves, and there was a packet of cigarettes in one of the chest pockets.

9.  PW1 felt someone behind him was moving his cross-body bag – it was an unusual movement – not the usual movement of the bag being pushed because of a crowded train. He also said that the train carriage was about one-third full.  He looked at his bag and saw a hand inserted under the flap of his cross-body bag.  PW1 demonstrated how the hand was under the flap of his cross-body bag.  His cross-body bag contained his wallet with his credit cards and cash, his keys, some documents and his I-Pad Pro, as well as another holder containing his identity card.

10.  A person who said he was a police officer pushed the hand away – he described the male who had inserted his hand under the flap of his cross-body bag to be wearing a green top, and he had a rather dark complexion and was about 1.6 metres tall.  He was not Chinese.  Nor was the man in the white shirt. 

11.  The police officer pushed the man in the green top to the middle of the carriage and also asked the man in the white shirt to come over and he had them both sit in the seats and handcuffed them together.  Others in the car who were not Chinese moved away to other carriages.  

12.  PW1 described another male who had also blocked him, but described his role as not being the main role – he was also not Chinese. He had been in the vicinity of the male wearing the white shirt. He had no recollection of what happened to this third male.

13.  At Cheung Sha Wan MTR Station, he, the police officer and the two arrested persons and two members of the public who had helped to guard the two arrested males all alighted. Other police officers came to assist and PW1 was separated from the two arrested males.

14.  PW1 was shown photos 6 and 7 of Exhibit P1 and said these depicted the male he had described as the male wearing the white shirt who had blocked his way and had stood facing him and who was subsequently handcuffed by the police officer.

15.  PW1 also said that the man in white was not in the group that pushed him from behind – he had rushed into the train ahead of PW1. 

16.  Under cross-examination, PW1 said when he gestured to the male in white to move, he had moved 1 step immediately.  He was face to face with him and this person had not touched his bag. He did not see any words or gestures exchanged between the man in green and the man in white.  He described the time as being between 3 to 5 seconds from the time he indicated with his finger for the man in white to move and he saw the hand under the flap of his cross-body bag, and during this period, he had not seen any exchange of words or gestures between the two men.

17.  It was admitted that the two photos 6 and 7 of Exhibit P1 depicted D2 in these proceedings.

18.  PW2 was Sergeant Yu Kin-shing, a police officer with some 22 years in the Police Force – he was PW5 in the list of Prosecution witnesses submitted.  He was on patrol inside the MTR in plain clothes at the material time.  His attention was drawn to a group of 6 to 7 persons that included 1 female and the rest were males. They kept chatting and looked at the personal belongings of people waiting to board the train.  Whilst he observed them for some to 6 to 7 minutes, 2 or 3 trains arrived and left at both Platforms 1 and 2, but the group did not board the trains on either platform. He informed his colleagues of his suspicions by mobile telephone.  Suddenly a train arrived at Platform No. 1.  Passengers boarded the train normally.  The group moved all together to the door of one of the carriages and boarded the same carriage through the same door.  He moved closer to observe the group.  He saw that they only joined the queue to board the train when the persons at the front of the queue had started boarding. They all queued to enter the same carriage, They surrounded a male at the rear of the queue waiting to board.  He said that he stood about 2 feet behind the victim i.e. PW1, to his right. They walked slowly to board the train.  PW2 described seeing a male in a white top at the right of PW1 use his left hand to try to open the fastener of the cross-body bag carried by PW1 at his right side – when he did this, he was about 1 foot from PW2 and they were boarding the train.  The male in the white top was unsuccessful in opening the fastener of the cross-body bag carried by PW1.   The male then walked ahead of PW1 and deliberately walked slowly, preventing PW1 from going ahead. Someone at PW2’s left very quickly interposed himself between PW2 and PW1 and stood between them.  As they were all very close together, PW2 moved to the right so as to be able to see what might be done.  He saw this person use his right hand to try to unfasten the fastener on the cross-body bag carried by PW1 but he was unsuccessful. This male turned his head to his left to look at another male at his left. At this point of time, they had almost boarded the train.  He heard these two persons talking to each other in a language he did not understand. The male at the left interposed himself in front of PW2 and took out a black re-usable bag, Exhibit P6, from the bag he was carrying – this male wore a green top, (and is D1 in these proceedings).

19.  PW2 described the first male who had unsuccessfully tried to open the fastener as wearing a short sleeved garment made of a soft fabric with a collar and buttons at the front and he did not wear glasses. He thought this male had walked to the left of PW1 ahead of him after he had unsuccessfully tried to open the fastener.

20.  The second male who had unsuccessfully tried to open the fastener with his right hand also wore a short sleeved white shirt with a collar and buttons at the front. He carried a bag on his shoulder and he wore glasses. He had spoken to D1 after he had unsuccessfully tried to open the fastener.

21.  PW2 described how D1 took out Exhibit P6 from the bag he was carrying and held it in his left hand to cover PW1’s bag and then reached his right hand under the flap of PW1’s bag. When he did this, the male with the glasses was on the left of PW1, very close to him – while he thought the male without glasses was in front of PW1 but he did not pay much attention to him.  When D1 inserted his hand under the flap of PW1’s bag, they were all inside the train carriage.  PW2 immediately shouted ‘police’ and grabbed D1 with his right hand, and the male wearing glasses with his left hand.  He did not notice where the man without glasses was as there were other people pressing around him.  He spoke to PW1 and told him someone had tried to steal from him and to check his bag.  PW1 also said he saw it.   They then took the 2 males to the seats for them to sit down and he handcuffed them because they did resist.  PW2 sought assistance from PW1 and other passengers.   At Cheung Sha Wan MTR Station, PW2 alighted with the 2 males, D1 and the male in glasses in the white shirt, together with PW1 and 2 other passengers who assisted to guard the 2 males, where they were joined by other police officers. PW1 told him he had checked his bag and nothing was missing.  PW2 identified D2 to be the second male who had tried unsuccessfully to open PW1’s bag.  He also confirmed that photos 6 and 7 of Exhibit P1 were photos of D2 and what he was wearing at the time of his arrest. He confirmed too that in the photos D2 was not wearing his glasses, he could not explain why.  In response to a question from the Court, PW2 said that D2 had his back to PW1 until after he had apprehended both D1 and D2.

22.  PW2 drew 2 sketches that were produced and marked as Exhibits P7 and P8 respectively. Exhibit P7 depicted the position of the group including PW1 (described as ‘VTM’), D1 (described as ‘green top’), D2 (described as ‘P1’), the other man in white who had no glasses (described as ‘WP’) and himself (described as ‘SGT’ – Exhibit P7 depicted their positions as they boarded the train when WP first tried unsuccessfully to open the fastener of PW1’s bag.   Exhibit P8 depicted their position after they had entered the carriage, when D1 inserted his hand under the flap of PW1’s bag.  ‘WP’ was no longer shown on this sketch as PW2 did not notice his position.

23.  I have carefully considered all the evidence adduced before me as well as the submissions of Counsel.  I have borne in mind at all times that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt.  D2 elected to remain silent.  That was his right and I inferred nothing against him for exercising that right.

24.  The facts at issue rely upon the credibility of witnesses and the weight to be attached to evidence.   The 2 Prosecution witnesses each gave their account of what happened at the material time.  Neither was shaken in cross-examination.  There are a number of discrepancies between the accounts of PW 1 and PW2, and in my view, these are material discrepancies.

25.  PW1 described the role of the man who had blocked him – he had been wearing a white shirt with two chest pockets.  He was not wearing glasses. He said that the photos 6 and 7 depicted that man.

26.  PW2 identified D2 to be the man in the said photos.  He said at the material time, D2 had been wearing glasses, and he could not explain why the photographs of D2 taken at the police station were taken of him without his glasses.

27.  PW1 said the man in the white shirt apprehended by PW2 had stood face to face with him throughout, while PW2 said that D2 stood between him and PW1 and had his back to PW1. PW2 said he had seen D2 unsuccessfully try to open the fastener of PW1’s bag. If all along D2 was face to face with PW1 then could PW2 have seen him try unsuccessfully to open PW’s bag’s fastener.  PW2 said he had seen D2 talking to D1, while PW1 had not seen any such exchange between the man in the white shirt and the man in the green top.

28.  PW1 said the man in white was already in the train in front of him when he boarded, while PW2 said that D2 moved from behind PW1 to the left front of PW1.

29.  PW2 said he caught D1 with his right hand and D2 with his left hand, and there was some resistance from them, so he had them sit on the seats and handcuffed them.  PW1 said PW2 caught D1 and had him sit on the seat, and beckoned the man in the white shirt to sit in the seat next to D1 and then handcuffed them.  He did not describe any resistance.

30.  There are material discrepancies between the two accounts.   They are discrepancies I find I am unable to resolve.  I do find the circumstances very suspicious and D2 to be very suspicious.  But as I have doubt, the benefit of the doubt must be to D2 and he is acquitted of the charge.