HKSAR v. GANBOLD MUNKH ERDENE

CACC 315/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2014

(ON APPEAL FROM DCCC NO. 435 OF 2014)

________________________

________________________

________________

J U D G M E N T

________________

1.  The 1^st applicant, who was unrepresented, seeks leave to appeal against his conviction after trial on 4 September 2014 by District Court Judge Casewell of theft committed together with his co-accused at trial, the 2^nd applicant, on 22 April 2014, contrary to section 9 of the Theft Ordinance, Cap. 210. Earlier, this Court granted both applicants leave to appeal against the sentences of imprisonment imposed on them, namely 24 months’ imprisonment in respect of the 1^st applicant and 16 months’ imprisonment in respect of the 2^nd applicant. The latter had pleaded guilty to the offence.

The Trial

2.  The applicants are Mongolian nationals, who were visiting Hong Kong at the time of the offence.   Shortly after 4 a.m. in the morning of 22 April 2014 the applicants were seen by two police officers in plain clothes at the junction of Cameron Road and Chatham Road South paying attention to passers-by.

The prosecution case

3.  Ms Bou Chi Ying (“Ms Bou”) and her boyfriend, Mr Poon Lai Kwong (“Mr Poon”), were in the vicinity looking for a taxi to return home after spending the evening in the hostelries of Tsim Sha Tsui.  The two police officers observed that the applicants followed the couple from behind.  As a result, they determined to keep the applicants under observation. To do so, they split up and one of them, PC 54153 (PW 3), took up position next to a telephone box at the junction of the two roads, where his view of the couple and the applicants was partially obstructed.  The other officer, PC 58224 (PW 4), observed them from a traffic island in Chatham Road, near Century Park.  He saw the 1^st and 2^nd applicants, dressed in a black and white T-shirt respectively, follow the couple closely.  PC 58224 said that his view of the applicants and the couple was from a distance of about 15 to 20 metres in sufficient lighting for him to see them clearly.  He testified that the 1^st applicant reached out with his left arm and removed a wallet from a female handbag carried on his shoulder by the male of the couple.  He handed the wallet to the 2^nd applicant who, when confronted by the police officers, threw the wallet on the floor.  The wallet contained $380.

4.  PC 54153 said that he had seen the 2^nd applicant holding a wallet in his right hand, which he threw to the floor when approached by the officer.

5.  Ms Bou testified that she and Mr Poon had been drinking since about midnight until 04:00, when they had gone to the location of where the theft occurred to hail a taxi.  When she turned round, having become aware of activity behind her, she saw a man bump against Mr Poon. Then, she said that she saw a man walk from across the road towards them.  At that stage the police appeared and the men were arrested.  For his part, Mr Poon said that when he had become aware of someone interfering with the bag of Ms Bou, which he was carrying on his shoulder, he had turned round and seen two men immediately behind him.  He disagreed that the second man had approached him subsequently, having come from across the road.

6.  Three other police officers who were called to give evidence denied that the 1^st applicant had been assaulted whilst in the police van.

Defence case

7.  The 1^st applicant did not give or call evidence in the defence case.  In cross-examination, it was suggested to the witnesses called on behalf of the prosecution that the 1^st applicant was on the other side of the road carrying a bottle of wine at the time of the theft by the 2^nd applicant.  Issue was taken with the evidence of PW 4 and it was contended that the 1^st applicant had played no part in the theft.

Reason for verdict

8.  In his Reasons for Verdict, the judge noted that there was no dispute that a wallet had been stolen from Ms Bou’s bag as it was being carried by Mr Poon.  Further, it was accepted that the 2^nd applicant was the thief, whilst it was contended that the 1^st applicant had nothing to do with the theft and was wrongly accused.

9.  The judge found that the only person with “a clear view of the incident throughout” was the fourth prosecution witness, noting that he was “well-located” to observe the couple and the incident which occurred behind them.  Then, he noted that the incident was over before either Ms Bou or Mr Poon was aware of it.  Finally, he accepted that PC 54153’s view of the alleged incident was obstructed for “at least part of the time”.

10.  In the result, the judge said that he was “prepared to place full reliance” on PC 58224’s evidence.  By contrast, he determined that Ms Bou was “subject to some confusion” and that she was clearly mistaken that one of the applicants had crossed the road.  He noted that both Ms Bou and Mr Poon admitted that they were “slightly inebriated” having been socialising for four hours.  He found that Mr Poon’s evidence accorded with the evidence of the two police officers, namely that there were two persons behind him.  In that respect, he accepted the evidence of PW 3 of the presence of the two men behind the couple.

11.  Although the judge accepted that, of necessity given the activity of surveillance conducted by the two police officers, their observation was at some distance from the couple and the applicants, nevertheless he accepted that their evidence that there was “sufficient lighting” to observe what they testified that they had seen.  In particular, he accepted the evidence of PC 58224 of his identification of the 1^st applicant and of his conduct as “reliable”.  Accordingly, he accepted that PC 58224 had seen the 1^st applicant place his hand in Ms Bou’s handbag carried on Mr Poon’s shoulder and remove a wallet which he then handed to the 2^nd applicant. 　In the result, the judge convicted the 1^st applicant of theft.

Grounds of appeal against conviction

12.  In the Grounds of Appeal against Conviction set out in Form XI, by which notice was given of an application for leave to appeal against conviction, the applicant asserted :

“ Allegation(s) against me were groundless. Prosecution witnesses gave contradictory evidence. I am innocent.”

13.  In his oral submissions the 1^st applicant developed his complaint in respect of the contradictory nature of the evidence of the prosecution witnesses.  He complained that the evidence of PC 54153, that his view of the applicant and the couple was obstructed from the position he occupied at the junction, was not borne out by the sketch drawn by PC 58224. Next, he asked rhetorically why it was that the 2^nd applicant had thrown away the wallet, if PC 54153 had approached him clad in plain clothes.  Then, he complained that the estimate of PC 58224 that his acts of removing the wallet and passing it to the 2^nd applicant took 5 to 8 seconds was implausible.  Further, he contended that the lighting depicted in the photographs exhibited by the prosecution at the trial showed the immediate scene of the theft to be dark (photograph 4), whereas another photograph (photograph 5) showed it to be well lit.  Finally, he took issue with the judge’s use of the term “non-professional” to describe Ms Bou as a witness, asking rhetorically: “were the police officers schooled in giving evidence?”

A consideration of the submissions

14.  There is no dispute that the evidence of the prosecution witnesses varied as to what they say they saw occurring.  In the case of the two police officers, that was clearly because they had different views of the sequence of events as the incident unfolded.  They were at different places.  PC 58224 had a direct view from the traffic island in Chatham Road across the carriageway to the pavement beyond where the applicants and the couple had their backs to him.  Whereas, PC 54153’s view was not only at an angle but also impeded by various signposts, as was evident from photograph 5.  Only PC 58224 testified that he saw the 1^st applicant place his hand in Ms Bou’s bag as it was carried on Mr Poon’s shoulders, remove a wallet and hand it to the 2^nd applicant.  PC 54153 saw the 2^nd applicant holding the wallet.  As the judge accepted, the differences in their testimony as to what each of them saw was explained by their location and the view that they had of events.  Nevertheless, their evidence was consistent.

15.  Although the undisputed evidence was that the two police officers were in plain clothes the conduct of the 2^nd applicant in throwing away the wallet when approached by PC 54153 is readily explained by the evidence of that officer that she did so in order to apprehend the 2^nd applicant.  No doubt, that was obvious to the 2^nd applicant.

16.  By contrast, the evidence of Ms Bou that she saw a person, the 1^st applicant, cross the road to join the 2^nd applicant at which place he was intercepted by police officers, conflicted with the evidence of not only the two police officers but also that of Mr Poon, who testified that he had seen two men immediately behind him when he had turned around having felt somebody interfering with the bag.  That evidence was consistent with the evidence of the two police officers.

17.  The estimate of time of 5 to 8 seconds that PC 58224 had given of the sequence of events, to which the judge referred, clearly included not only the act of the 1^st applicant placing his hand in the bag and removing the wallet before passing it to the 2^nd applicant but also the act of the two of them following the couple.  In that context, the judge referred to the estimate as referring to the “transaction”.

18.  Having regard to the fact that Ms Bou and Mr Poon had been drinking from about midnight until 4:00 in the morning and that they accepted that they were “slightly inebriated”, the judge was entitled to determine that she was confused, noting as he did in addition that for non-professional witnesses such events are shocking to witness and may cloud recollection.  Clearly, the judge was doing no more than drawing a distinction between a shocked and inebriated victim of theft and police officers on anti-burglary patrol, who had deliberately determined to maintain surveillance on the applicants.  That obvious distinction between the witnesses was entirely justified.

19.  In those circumstances, and having regard to the consistent testimony of all three other eyewitnesses, the judge was entitled to conclude that she was mistaken in her testimony as to the movements of the man across the road.  In the result, the judge was entitled to determine that the evidence of PW 3 and PW 4 was reliable.  Clearly, that evidence was powerful evidence to sustain the conviction of the 1^st applicant.

Conclusion

20.  Accordingly, the 1^st applicant’s application for leave to appeal against conviction is refused.