HKSAR v. JEMBA SAMI

DCCC 325/2021

[2022] HKDC 1073

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 325 OF 2021

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REASONS FOR VERDICT

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1.  D2 appeared before me faced with a 2^nd Re-amended Charge Sheet consisting of 6 charges with all of them preferred against D1 but with only 2 of them (Charges 1 & 4)  preferred against D2.

2.  D2 pleaded not guilty to those two charges ie Charge 1 and Charge 4, necessitating a trial against him on the 2 charges.

3.  Charge 1 is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D2, together with D1, on 28 November 2020, outside No 320 Reclamation Street, Mong Kok, Kowloon, in Hong Kong, stole one motor cycle with chassis number RGTHY150JGT010028, property belonging to Wu Chuanyi.

4.  Charge 4 is Going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap 210.  Particulars are that D2, together with D1, on 28 November 2020, in a private car with chassis number E51-028370, near the junction of Lai Chi Kok Road and Tonkin Street, Sham Shui Po, Kowloon, in Hong Kong, not being at their place of abode, had with them articles, namely two pairs of cutting pliers and two pairs of labourer’s gloves, for use in the course of or in connection with theft.

THE PROSECUTION CASE

5.  In the small hours of the day, D1 and D2 had walked close to a set of motorcycle parking spaces in Reclamation Street and looked at the motorcycles parked there in a suspicious manner.  Half an hour or so later, they returned in a 7-seater with T-plates showing different numbers hung on the front and back.  They got off and loaded a motorcycle from the parking spaces onto the back compartment of the 7-seater.  D1 drove away with D2 as the front passenger on board.  They were followed by the police and were eventually stopped in Lai Chi Kok Road, near Tonkin Street.  D1 and D2 both fled from the 7-seater but were eventually subdued and arrested.

6.  On the 7-seater were found the motorcycle and two pairs of cutting pliers (in open view)  and two pairs of labourer’s gloves.  D2 had a similar pair of gloves on at the time of arrest.

THE DEFENCE CASE

7.  D2 elected to give evidence.  D2 had a chance meeting in Sham Shui Po night market with D1 around midnight.  They walked for about 2 hours there before D1 offered to give him a lift home on board D1’s 7-seater.  After a few stops along the way, D1 eventually stopped near the parking spaces.  D1 got off and talked to a Chinese male in front of the 7-seater.  The two men walked to the back of the 7-seater along the side of the front passenger seat.  D1 then called D2 to come help him.  By the time D2 got to the rear of the 7-seater, the Chinese male was gone.  D1 gave D2 a pair of labourer’s gloves to put on and asked D2 to assist in loading a motorcycle onto the back compartment of the 7-seater.  D2 did as asked and climbed on the 7-seater through the back door and walked straight to sit at the front passenger seat.  In the physical space where the police found the two pairs of cutting pliers ie between the two front seats, there was only a blue bag on top of a car carpet.  D1 had told D2 that the motorcycle was given to D1 by the Chinese male.

SUMMARY OF THE PROSECUTION EVIDENCE

PW1 PC 11658 of YMT Task Force

8.  On 28 November 2020, at about 0300 hours, PW1 saw from a distance of about 5 metres 2 African males outside 320 Reclamation Street walking from the motorcycle parking spaces onto the road then they turned left into Dundas Street and towards Ferry Street.  They looked back at those motorcycles from time to time.

9.  The first male wore a grey cap, a blue surgical mask, grey long-sleeved top, dark trousers and a pair of grey shoes.  The second male wore a dark long jacket with an attached hood on his head, a blue surgical mask, dark trousers and brown shoes.

10.  At 0335 hours the same day, PW1 was at a 4/F podium at the opposite side of the street overlooking the same motorcycle parking spaces from a distance of about 20 metres.

11.  At 0347 hours, PW1 noticed a black 7-seater came and parked on the road just off the said parking spaces.  The 7-seater did not have number plates; there were only a T-plate at the front and at the back of it.  The same first male got off from the driver’s seat.  The same second male got off from the back door of the 7-seater.  The two males walked to the side of the parking spaces; they lifted up a black motorcycle together, one on each side and loaded it into the trunk of the 7-seater.  The first male then went to the driver-seat.  The second male closed the back door of the 7-seater and got on the vehicle at the left front side passenger seat position.

12.  Seeing that the 7-seater was about to be driven away, PW1 immediately informed colleagues on the ground by using a mobile phone app that two males had loaded a motorcycle onto a black 7-seater with T-plate hung at front and back and told his colleagues to pay attention to it.

13.  Upon recall and under further cross-examination, PW1 disagreed to the suggestion there was a Chinese male who passed in front of the 7-seater with the (first)  African male and they walked towards the back along the passenger seat side.

14.  PW1 insisted that the (second)  male on the passenger seat did not alight from the passenger seat (door).

15.  PW1 disagreed to the suggestion that after loading the motorcycle into the back compartment, the (second)  male simply jumped into the front passenger seat without getting off.

PW2 PC 11766 of YMT Task Force

16.  Having received information from PW1 through a mobile phone app, PW2 rushed to the scene and saw the 7-seater about to be driven off.  PW2 ran for a while after the 7-seater until a point where he got on an unmarked government vehicle driven by SSgt Chung to continue the pursuit.  When the 7-seater reached Lai Chi Kok Road near Boundary Street heading towards Sham Shui Po, PW2 asked for reinforcement of EU car through his mobile phone.  The 7-seater diverted to other streets before returning to Lai Chi Kok Road again and stopped near the Tonkin Street junction because of red traffic light.  A EU car 31 stopped on the right side of the 7-seater a little bit ahead in front of it.  The government vehicle in which PW2 found himself stopped immediately behind the 7-seater.  An African male (later known as D1 Mukungu)  jumped off from the driver seat of the 7-seater and fled along Lai Chi Kok Road in the direction of Mong Kok.  PW2 got off and chased after D1 while saying “Police, Stop!” After less than one minute, PW2 stopped D1 about 50 metres away just outside a park housing the Sham Shui Po Swimming Pool.  With the assistance of a teammate, PW2 subdued and handcuffed D1.  PW2 arrested D1 for Taking conveyance without authority and took him to another EU car (EU car 33)  for holding.

17.  D1 was wearing a grey beanie, a blue surgical mask, a grey long-sleeved top, dark green trousers, and grey shoes.  D1 had a Form 8 on him the photo on which fit D1’s facial appearance.  The address on the Form 8 showed D1 to be living in Waterloo Road, Kowloon.

18.  Later, during 0512 to 0517 hours, PC 10719 (PW4)  conducted a search of the 7-seater while PW2 and D1 were witnessing the search on the left side of the 7-seater.  PW4 found a black motorcycle in the back compartment of the 7-seater and found 2 pliers between the two front seats.

19.  Under cross-examination, PW2 agreed there was a lapse of time between his arrest of D1 and the search of the 7-seater that he did not see what was inside the 7-seater.  PW2 agreed there were lots of dust on the black motorcycle but he could not see scratches on it.  PW2 agreed that during the search, PW4 was inside the 7-seater (on the right hand side of the motorcycle)  although he did not actually see PW4’s actual movement of getting into the back compartment.  PW2 was keeping guard of D1.

PW3 PC 16746 UB of EU car 31

20.  On the subject day, at about 0356 hours, PW3 was on board a EU car AM8106 (ie EU car 31).  There was an emergency call from the radio assigning the EU car to assist Task Force of YMT to handle this case of car theft.  PW3 contacted the Task Force by phone until 0404 hours when he saw the black 7-seater on Lane 1 of Lai Chi Kok Road near Tonkin Street heading Mei Foo direction.  EU car 31 was on Lane 3 heading the same direction.  Then there was red traffic light, the 7-seater stopped.  EU car 31 cut from Lane 3 into Lane 2 and stopped at the right hand side in front of the 7-seater.  The 7-seater suddenly started moving.  The right hand side body of it collided into the left hand side body of EU car 31.  After the collision, two non-Chinese suspect male persons jumped down from the driver’s seat.  They ran towards Mong Kok direction along Lai Chi Kok Road.  PW3 ran after them for 10 metres and caught up with one of them (later known as D2)  and subdued him with the help of 2 plain-clothes officers including PW4 and a uniformed colleague of EU car 31. D2 was struggling so PW3 used handcuffs to restrain him before taking him to the side of pavement to make inquiry.

21.  D2 was wearing blue surgical mask, a black camouflage jacket, black trousers and brown shoes.  He was also wearing a pair of labour gloves.

22.  After a short inquiry, PW3 arrested D2 with Taking conveyance without authority ie a motorcycle.  A Form 8 was on D2’s person.  The photo on it matched D2’s facial appearance.

23.  Between 0512 and 0517 hours, PW4 conducted a search of the 7-seater at the collision scene in the presence of D2.  PW3 was guarding D2 on the left hand side of the 7-seater.  There was a black motorcycle in the back of the 7-seater.

24.  At 0528 hours, PW3 declared arrest of D2 for possession of instruments fit for unlawful purposes and then seized the pair of labour gloves as exhibit which he passed to PW4 at 0820 hours the same day for custody.

25.  The collision between the 7-seater and EU car 31 took place in the middle of Lane 1 and Lane 2.

26.  Under cross-examination, PW3 said when he was chasing after D2, he said, “Police, don’t move!”.  After the first arrest, PW3 took D2 to a EU car AM 6472 and put a hood on him.  The second arrest took place in this EU car at 0518 hours.  When PW3 took D2 to the left hand side of the 7-seater to witness the search starting 0512 hours, it was not the case that PW4 was already inside the 7-seater.

PW4 PC 10719 of YMT Task Force

27.  At about 0347 hours on the subject day, after receiving information from PW1, PW4 ran to the scene and saw the 7-seater moving away on Reclamation Street near Soy Street.  PW4 continued running after it towards Mong Kok direction.  When PW4 reached Mong Kok Road near Nathan Road, he had lost sight of the 7-seater.  Based on what he was told by PW2 by remote means, he stopped a taxi on Nathan Road and boarded it with two teammates and he directed the taxi driver to drive along Lai Chi Kok Road towards Sham Shui Po direction.

28.  When the taxi reached Lai Chi Kok Road near Tonkin Street, traffic light turned red. The taxi stopped as being the first vehicle on Lane 1.  The time was 0404 hours.  PW2 who was on board the government vehicle told him that they had also stopped because of traffic light at about the same place.  There were no vehicles in front.  Behind PW4 was a private car.  Behind the private car was a 7-seater.  On seeing the 7-seater, PW4 got off from the left door and ran towards it in order to confirm its identity.  From the driver’s seat of the 7-seater, D1 got off.  Then the 7-seater collided with EU car 31.  PW4 ran to the left side of the 7-seater (towards the passenger seat position)  and wanted to take the African male (later known as D2)  off from that position.  When PW4 was near it, D2 saw PW4 so he chose to get off the 7-seater through the driver’s seat door.  So PW4 continued to run to the back of the 7-seater to try to intercept D2 and yelled, “Police, don’t move!”.  However, D2 kept running away.  PW4 grabbed D2 by the arm in order to keep him from running away.  D2 kept struggling.  About 10 metres behind the 7-seater, PW3 (ie the arresting officer of D2)  and two other officers came to assist PW4 to subdue D2 on the ground.  PW4 then ran towards the direction of Yam Chau Street (further towards Mong Kok)  to assist other colleagues in relation to D1.

29.  After PW4 had given assistance to PW2 to handcuff D1, EU car 33 arrived.  Both officers escorted D1 to EU car 33 for holding.

30.  Meanwhile, PW3 had taken D2 to another EU car (AM 6472).

31.  Between 0414 and 0420 hours, PW4 conducted a first search of the 7-seater because he needed to confirm the motorcycle was inside and that there were no other suspects about.  He opened the right side sliding door and examined the back compartment with the help of his torch.  He saw the black motorcycle; that there wasn’t any passenger seat at the back nor was there anyone.  In the front compartment, the central panel had been prized open; wires were exposed.  PW4 did not enter the 7-seater at this stage.

32.  The second search was conducted by PW4 between 0512 and 0517 hours.  PW2 with D1, and PW3 with D2 were present.  They were standing on the left hand side of the 7-seater.  PW4 was standing on the right hand side.  Since the two rear passenger doors were slided open, people from both sides could see each other and the condition inside.

33.  There was the black motorcycle.  At the front compartment, between the passenger seat and the driver’s seat, there were two pairs of cutting pliers, one in red, the other orange.  PW4 held them up to show the two officers and the two arrested persons.  After showing the pliers to them, PW4 replaced the pliers in their original positions.

34.  On the ground about 10 metres from the back of the 7-seater, a grey cap was found.  It belonged to D2.  PW4 informed the Investigation Officer of the case about it but otherwise just left it on the ground.  When PW4 first saw D2 behind the 7-seater and was yelling, “Police, don’t move!”, D2 was already wearing this cap.  It was during the struggle that the cap fell to the ground.

35.  The reason why PW4 put the 2 pliers back to their original positions was that he was passing over the 7-seater and the exhibits on it to DPC 26259 (PW5).

36.  PW4 left the cap on the ground for photo-taking and for other(s)  to take custody of it.  The area concerned was cordoned off so no one other than PW4 would go near or tamper with the 7-seater.  In general, PW4 passed over the scene to PW5.

37.  Under cross-examination, PW4 said during the first search, the driver’s seat door was slightly open.  During the second search, PW4 opened all doors of the 7-seater except the trunk door.

38.  Between D2 getting off the 7-seater and the first search, PW4 would not know if anyone got into the 7-seater.  Between the end of first search at 0420 hours and the beginning of second search at 0512 hours, PW4 was not looking at the 7-seater but there were uniformed officers to assist him to cordon off the scene to prevent anyone entering and tampering with the scene.

39.  There were 3 reasons why the two arrested persons were not brought near to witness the first search:-

(a)  There wasn’t enough manpower (at that time)  so the two arrested persons had to be kept inside the two EU cars to prevent escape;

(b)  Since this was a car theft case, he had to make sure there was a motorcycle inside the 7-seater; and

(c)  Immediate examination needed to be conducted to see if there were other people there.

40.  PW4 disagreed that he had already started the second search before PW2 and D1 came to the left side of the 7-seater.  During the second search, PW4 did not set his foot on the compartment.  However, his head, torso and arms had entered the 7-seater.  PW4 noticed the motorcycle was dusty; that there were some scratches on it but not badly.

41.  Regarding the blue bag shown in photos 5 & 12 of Photo Album P1, PW4 could not remember if it was originally on top of the pliers.

42.  The motorcycle did not have number plate at the front or back.

PW5 DPC 26259 of DIT SSPo

43.  PW5 arrived at the scene at 0500 hours with Sgt 34704.  He found a black motorcycle (make was HARTFORD)  inside the black 7-seater.  The mark HARTFORD was near the front wheel of the motorcycle.

44.  He took over the exhibits at the scene from PW4 and handled some exhibits including two pairs of labour gloves found inside the 7-seater, two pairs of cutting pliers and two T-plates hung on the 7-seater and a cap believed to be left by a suspect at the scene.

45.  The two pairs of gloves were found respectively at under the left front passenger seat and between the front seats at the gap area.  After seizure, PW5 put them into exhibits envelope and eventually they were put into the Exhibits Room of Sham Shui Po Police Station for safekeeping.

46.  Before the Identification Bureau officer came to take photos, the area had been cordoned off to ensure no one could interfere with the exhibits.  In general, PW5 took custody of all the physical exhibits found at the scene (except the one pair of labour gloves P9 previously worn by D2 as per PW3’s evidence)  which he kept safe until eventually passing them over to the same Exhibits Room.

47.  On 30 November 2020, he found the chassis number of the 7-seater to be E51-028370.

48.  Under cross-examination, PW5 disagreed to the suggestion that he had not ensured the safekeeping of the exhibits.

49.  The area was already cordoned off on PW5’s arrival at the scene.

50.  When taking a statement from Wu Chuanyi, the purported owner of the black motorcycle, Wu could not provide documentary proof of purchasing the motorcycle.

51.  As regards the chassis number of the black motorcycle, PW5 found it on the motorcycle and recorded it to be RGTHY150JGTD10028.  According to what he knew, once armed with this chassis number, one could input it into a computer system (VALID 4)  linked to the Transport Department in order to obtain details including the make, model, and owner of the vehicle.

52.  When asked if there was a record of the time at which he inputted the chassis number into the system, PW5 said yes.

53.  Under re-examination and further cross-examination, PW5 said if one typed in the wrong chassis number, this vehicle (meaning the motorcycle)  could not be found.

54.  When asked when it was that he used the system to find out the details of the motorcycle, PW5 said it was around 30 November 2020 but for the detailed time he could not remember; that he was not in the police station at the time. He then elaborated that the Traffic Unit was also investigating the case and therefore he referred the system enquiry task to them and asked for their assistance to find out to whom this motorcycle belonged.  It turned out that it was not PW5 himself who inputted the data into the system.

55.  What happened was on 30 November 2020, at about 8 am, he arrived at the police station.  He went to the Parking Lot to find out the chassis number on the motorcycle.  He then copied the number on a piece of paper and went back to the office.  He typed this number on the electronic Pol 155 on the computer (which was the same number given in evidence earlier).  He then orally passed this chassis number to an officer of the Traffic Unit by phone.  Then he left the police station for an official duty.  Shortly after half-past-ten in the morning, he received a call from the Traffic Unit saying there was a result which would be/had been faxed to PW5’s police station.  He picked up the faxed report after 5:30 pm on the same day upon return to the police station.  The faxed report was produced as P13. The piece of paper has since been discarded.

CERTIFICATE OF PARTICULARS OF VEHICLE EXHIBIT P3

56.  This exhibit shows that a black motorcycle of make HARTFORD with chassis number RGTHY150JGT010028 (number identical to the number printed on Exhibit P13 but one alphanumeric digit different from the chassis number given in oral evidence by PW5). 

57.  P3 shows that the owner of the motorcycle is one Wu Chuanyi ie the same name as appears in the particulars of Charge 1.

PROCEDURAL HISTORY

58.  Before trial proper, defence applied for a permanent stay of proceedings (regarding Charge 1)  on the basis of a missing witness namely Wu Chuanyi who was the registered owner of the motorcycle subject of Charge 1.  The defence submitted that no fair trial would be possible and continuing the prosecution would amount to an abuse of process.  The defence acknowledged that the burden is on the defence to show on a balance of probabilities that no fair trial can be held.  The defence wanted to cross-examine Wu because there was a real possibility that Wu had abandoned his motorcycle rendering the theft charge untenable.

59.  Prosecution accepted that it has been unable to locate Wu despite the best efforts of the police. Prosecution even accepted that Wu deliberately avoided the police’s attempts to locate him.  Upon enquiry, prosecution informed me that witness summons had been taken out but could not be served on Wu.

60.  Prosecution opposed the application.  Prosecution submitted that if necessary, the court could give itself directions on the evidence adduced and the absence of other possible evidence, and remind itself of the handicap and impact suffered by D2 in running his defence of abandonment due to Wu’s absence so as to avoid unfairness.  Prosecution also submitted that remedial steps could be taken such as the production of Wu’s witness statement in the trial under section 65B of the Criminal Procedure Ordinance, Cap 221.

61.  I have considered the written submissions from both sides supplemented by their oral submissions.

62.  I have reminded myself of Archbold Hong Kong 2022 para 4-56 which deals specifically with the topic of “Missing witness/exhibits”.

63.  The issue seems to be whether it can be said that there is some basis to show what the witness would say and how it would be likely to assist the defence case.  In short, the court should consider the extent to which the absent witness might support the defence case.

64.  To this end, I have asked for the witness statement of Wu in order to evaluate what possible evidence Wu could give to assist the defence to run the defence of abandonment.  Wu gave a statement in Sham Shui Po Police Station 2 December 2020 ie only a few days after the alleged offence.  In it, Mr Wu said:-

(a)  He was a construction site worker;

(b)  In early June 2019, he applied for a temporary driving licence for driving a motorcycle which would be valid for one year;

(c)  In mid-June 2019, he bought the subject motorcycle second-hand with its vehicle licence which would be valid until February 2020;

(d)  In October 2019, he failed his driving test so he drove less;

(e)  He continued to keep his vehicle keys;

(f)  In December 2019, he parked the motorcycle somewhere in the vicinity of Mong Kok and Yau Ma Tei; however being affected by alcohol, he could not remember the exact location and he could not find it;

(g)  Being too busy at work, he did not re-appy for a driving test for the purpose of obtaining a driving licence and he did not proactively look for the motorcycle and forgot to follow up the matter regarding the missing motorcycle;

(h)  When he last saw the motorcycle, the rear number plate and vehicle licence were still on;

(i)  In February 2020, he did not renew the vehicle licence because he was too busy at work;

(j)  In June 2020, his temporary driving licence also expired and he did not renew it;

(k)  In July 2020, he received a fixed penalty ticket regarding the motorcycle; he paid the penalty but because he was too busy at work, he did not follow up the matter of why and how; and

(l)  On 2 December 2020, he went to the Sham Shui Po Police Station and identified the motorcycle as his own, but the rear number plate and vehicle licence were missing; otherwise the rest was all normal and nothing different.

65.  In his witness statement, I note Mr Wu said he had kept the keys to the motorcycle; that he parked the motorcycle in the vicinity of Mong Kok and Yau Ma Tei, which of course included Reclamation Street; that he paid the fixed penalty even as late as July 2020, 7 months since he last saw his motorcycle; that he gave explanations for his various inactions regarding the motorcycle but they were not related to abandonment.

66.  Bearing in mind the burden was on the defence albeit on a lower standard of proof, I do not find that the defence has successfully shown what Mr Wu would say would likely assist the defence case.

67.  Therefore, I refused the defence’s application to stay the proceedings permanently in relation to Charge 1.  I reminded parties that the photos which I have seen and the contents of the witness statement of Mr Wu which I have read will form no part of the case against D2 in the trial unless by some means they are adduced as evidence in the trial.

68.  During the application, I did remind the defence that it was open to it but it would be a matter for the defence whether to adduce Mr Wu’s statement under section 65B and that the burden and standard of proof would be different at trial.

69.  Trial then proceeded.

70.  After the close of the prosecution case, defence made no-case submissions on both Charges 1 and 4.

71.  On Charge 1, defence says that prosecution has not proved a prima facie case that Wu Chuanyi, the owner of the motorcycle, had not relinquished control of the motorcycle.  It was argued that although the Certificate of Particulars of Vehicle exhibit P3 proved Wu was the registered owner, there was nothing to prove Wu has kept the property rights in the motorcycle.  In this connection, defence relied on the fact that there were indications that Wu did not wish to be found by the police for court purposes.

72.  On Charge 4, the challenge was on the chain of evidence in relation to the two pairs of labourer’s gloves and the two pairs of pliers allegedly found on board the 7-seater.  Defence says a prima facie case has not been established.  It was argued that the gloves had not been mentioned by PW4 the initial exhibits officer.  It was said that the 7-seater was driven and owned by D1.  It was said that PW4 could not remember if a blue bag (shown in P1(12))  was originally on top of the pliers.

73.  On a review of the evidence and having considered the submissions from both sides, I ruled there is a case to answer on Charges 1 and 4 against D2.

74.  The short reasons on Charge 1 can be found in the section on the topic of Abandonment below.

75.  The short reasons on Charge 4 is that since these exhibits are not the type of exhibits whose nature could only be determined by a scientific method, a strict regime of chain of evidence might not be required; besides, there is some evidence of continuous police presence at the scene thus preventing the exhibits from external interference; PW4’s failure to remember something is neither here nor there in the absence of positive evidence that a state of affairs as the defence alleged had existed.

76.  D2 had the right not to give or call evidence.  In the end, D2 has chosen to give evidence and to call no other witnesses.  I would assess his evidence with the same objective standard as I assessed the evidence of all other witnesses bearing always in mind it was the prosecution that bore the burden of proof throughout.

77.  After the defence has closed its case, both sides made oral final submissions. I took these submissions fully into account but will not summarize them here.

SUMMARY OF THE EVIDENCE OF DW ie D2 HIMSELF

78.  D2 resided in Yuen Long.  By the time of the incident, he had known D1 for about 3 months.  D1 also resided in Yuen Long.  Both D1 and D2 were from Uganda.  D2 would call D1 Wilber.  D1 collected old stuff or scrap.  He did not know D1 to be a person who would commit a crime.

79.  On the night of 27 November 2020, around midnight, D1 found D2 in Sham Shui Po market.  D2 had gone there to look for second hand clothes because they were available there.  They then walked together for some time.  D1 said he was looking for something.  Thereafter, D1 led him to D1’s vehicle.  D2 got in the front passenger seat.  D1 drove off.  D1 said he was going home.  This was the first time D2 saw this vehicle.  D2 asked about it.  D1 said he just bought the vehicle.

80.  They left Sham Shui Po.  D2 had no idea about the roads.  D1 stopped two to three times and got off after switching off the engine.  Each time, D1 was away for 10 to 15 minutes.  D2 stayed, chatting on the phone with someone else.

81.  During the last time D1 stopped (this time D2 could not remember if D1 had switched off the engine), he got out and spoke to a Chinese male (latter with mask on).  As he was speaking, both D1 and the Chinese male walked past the vehicle (on D2’s side)  to the back.  That was the last time he saw the Chinese male.  D1 then called his (D2’s)  name and asked him to come help him. D2 got out and walked to the back where D1 was.  The boot was open already.  D1 asked D2 to help him lift a motorcycle there.  D2 was at the back of the motorcycle and D1 was at its front.  Together they lifted the motorcycle into the vehicle.  D2 was the only one that got into the vehicle from the back.  D1 did not board at this point.  D2 was wearing gloves.  D1 gave him the gloves when D1 called out to him to help out.

82.  D2 then went straight to the front passenger seat moving internally.  D1 closed the boot.

83.  The motorcycle was black, dirty, dusty, looked old, with scratch and some parts broken.  It was neither covered nor chained.

84.  D1 then drove off.  As far as D2 was concerned, he was just asking for a lift.  D1 was driving quite slowly.  D2 was mostly on his phone.  D2 did not hear any sirens nor see any car chasing them.  D2 did ask D1 about the Chinese male.  D1 replied that it was his friend who got him the motorcycle.  D2 had not removed his gloves because D1 had told him to help D1 unload it; so he did not bother to take them off.

85.  When the police car came in front of their vehicle, D1 ran.  Out of panic, D2 followed him.  When the police were handcuffing him, he did not hear the police say, “Police, don’t move!”

86.  At the time the police car came in front of them, D2 did not hear “Police, don’t move!”  When there were other police cars, the police were saying something.  He did try to struggle at one stage because he was panicking and did not know what was happening.

87.  At a later stage, he was taken to the left hand side of D1’s vehicle. There was going to be a search of the vehicle.  When he reached that place, he saw one person inside the vehicle.

88.  When he was travelling in D1’s vehicle, he did not see the two pairs of pliers.  At that time, in the space between the two front seats, there was a car carpet with a blue bag (shown in P1(12))  on top of it.  The said carpet is similar to the ones in the front of and behind the passenger seat shown in P1(7).

89.  D2 did not have agreement with D1 to nor did he intend to steal the motorcycle.  D2 knew however where the motorcycle originally was ie in the space between the bad-looking motorcycle and the rest on P1(23).

90.  D2 did not know about the two pairs of pliers.

91.  D2 was not shown any other gloves by police officers.  D2 did not know about any other gloves.  The vehicle did not belong to him.

92.  Under cross-examination, D2 agreed that at midnight, he was far from home.  He did not end up buying any clothes.  D2 walked with D1 for maybe 2 hours or a little bit more.  D1 was looking for old things or scrap.

93.  D2 agreed that at about 3 am, he and D1 were at the junction of Reclamation Street near Dundas Street.  He did not ask why D1 stopped the vehicle for 2 to 3 times as he (D2)  was being offered a lift.  He did not ask D1 where D1 was going when leaving the vehicle.

94.  D2 disagreed to the suggestion that there was no Chinese male.

95.  D1 was speaking on the phone before he went to pick up the motorcycle. By the time D2 lifted the motorcycle, the Chinese male had already left.

96.  D2 agreed that D1 told him that a friend gave the motorcycle to him.  D2 did not know if there was a light in the back compartment of the vehicle as it was not his vehicle.

97.  D2 however agreed that there were times when he was already on the passenger seat and D1 opened the driver’s door to get in, a light inside the vehicle would have come on.

98.  When asked if he would have been able to see what was inside the vehicle when the light was on, D2 said the vehicle did not belong to him.

99.  Later though, D2 said in evidence that when he was inside the vehicle, he did not notice if the light was on or not.

100.  D2 agreed at one time, he walked through the space between the 2 front seats.  However, he didn’t think he stepped on the two pairs of pliers; he thought he jumped over them.  He disagreed the reason for jumping was he knew they were there.  He said he jumped because there was a bag; that he intended to jump over the bag.  He agreed that he had noticed the bag beforehand.  D2 agreed the bag was the only thing on top of the carpet but he did not take note if the bag was empty.  D2 said he could not step on the bag as it was not his bag.

101.  When it was suggested that the blue bag was not large enough to cover the two pairs of pliers, D2 said that he did not see the pliers; that it seems that they were under the carpet because the only thing he saw was the blue bag on top of the carpet.

102.  P1(9)  was shown showing the two pairs of pliers in open view in the space between the two front seats.  D2 disagreed to the suggestion that there was not a carpet on top of the pliers.  In the same photo there was a pair of gloves just behind the two pairs of pliers (right side of the photo).

103.  Although D2 agreed this pair was similar to the pair he was wearing at the time and that the former pair was found in the vehicle, he did not know the gloves were there.

104.  To the suggestion that D2 had the pliers because he might need them to steal the motorcycle, D2 said no.

105.  D2 did not agree to the suggestion that if there was nothing wrong, there was nothing to panic about leading him to depart from the vehicle after being stopped.  D2 disagreed that under the circumstances as he had related, there was no reason to run from the police.

106.  D2 said he heard siren but he he did not hear anybody say, “Police, don’t move!”

107.  It was put that D2 did not want to get caught by the police because he helped D1 to steal the motorcycle.  D2 replied that he did not know anything about that.

108.  It was also put that D2 did not want to get caught because there were cutting pliers and gloves in the vehicle.  D2 replied that the vehicle did not belong to him and he did not know about them.

MY CONSIDERATION

109.  I bear in mind the prosecution bears the burden of proof, the standard being beyond a reasonable doubt.  Defence has to prove nothing, not least the innocence of the defendant.

110.  I bear in mind D2 is a person of clear record.  What that means is he is more likely to tell the truth and less likely to commit a crime, than a person who has a criminal record.

111.  I will consider the two charges separately.  A particular verdict on one has no effect on the verdict on the other.

112.  I note in final submissions, the defence said that it was not saying prosecution witnesses were dishonest; what the defence was saying was prosecution witnesses were unreliable.  Indeed, I note that at no time during cross-examination did defence ever suggest a prosecution witness was lying.

113.  I note that the defence had not agreed the chain of evidence in relation to the exhibits.  Initially, I was under the impression that the defence might have been suggesting that the exhibits might have been switched.  But that would be rather strange in a case where the exhibits are not the type of exhibits whose nature has to be determined by a scientific method such as chemical examination.

114.  Later, through the evidence of D2, I came to understand the defence’s suggestion was not that; but was rather, in relation to a narrow class of exhibits, namely the two pairs of cutting pliers and possibly also the two pairs of labourer’s gloves found on the vehicle (all under Charge 4), that there was a break in the chain of evidence in that there was no evidence to show that, for some of the time between the interception of the 7-seater at Lai Chi Kok Road and the later discovery of the exhibits (the pliers by PW4 and the gloves by PW5), the 7-seater (and its contents)  had been kept secure from interference.  The significance of this aspect came to light because D2 denied that he knew anything about the pliers or the two pairs of gloves on board the 7-seater.  The evidence of D2 was that in the physical space where the prosecution says the two pairs of pliers were lying in open view, there was only a carpet with a blue bag on top.  Contrary to D2’s claim, the blue bag was photographed (later)  to have been in a different position (see P1(12)).  However, somewhat supporting D2’s claim to a small extent, PW4, the first officer who dealt with exhibits, said in evidence he could not remember if the blue bag was originally on top of the pliers, rather than denying it outright.  In the circumstances, I agree there exists a possibility that the blue bag was originally on top of the pairs of pliers and thereby blocking the view, even if partially, of anyone looking in that direction.

115.  But that is not the weakest point in the prosecution case in relation to the pliers.  The weakest point, and this also applies to the two pairs of gloves found on board, is that there is insufficient evidence that D2 had these exhibits, or any of them, for the purpose, or with the intention, of using (or letting another person use)  them, or any of them, in the course of or in connection with a theft to be committed in the future, even assuming he knew about their existence.  The undisputed evidence was that the 7-seater belonged to D1; that D2 had only been on board for an hour or so.  There was no evidence that D2 had been in contact with any of these items either.

116.  In relation to the two pairs of gloves, an irregularity has occurred in that they were never mentioned by PW4 in evidence.  The evidence seems to be that they were first discovered and seized by PW5, somebody who arrived at the scene later as the Investigation Officer.  There was no evidence that any police officer had ever shown them to the arrested persons D1 and D2.

CHARGE 4

117.  All in all, under such circumstances, there is a doubt in the prosecution case in relation to Charge 4.

CHARGE 1

118.  With Charge 4 out of the way, the really material prosecution witnesses are reduced to just PW1, PW3, PW4 and PW5.  Defence complained of the unreliability of PW5 he being the “least reliable” and PW1 being the next in line.

119.  There has never been any dispute that the motorcycle found in the back compartment of the 7-seater was the motorcycle loaded onto the 7-seater by D1 and D2 together.  There has not been any suggestion that the motorcycle had been tampered with or moved in any way while inside the 7-seater.

120.  Although because of PW5’s evidence, there has been some confusion as to the true chassis number of the subject motorcycle ie whether it was RGTHY150JGT010028, ie the number shown in exhibits P3 and P13 and also the number stated in the particulars of Charge 1, with the necessary result that its registered owner was Wu Chuanyi, ie the name of the owner under the Charge 1; or RGTHY150JGTD10028 which was the number given in evidence by PW5.  Having considered the evidence as a whole and having regard to the matching of colour and make of the physical motorcycle with the record on P3 and P13, I am satisfied that PW5 made a genuine mistake in his evidence and that the true number he transmitted to the officer of the Traffic Unit was RGTHY150JGT010028.

121.  This finding meant that the registered owner was indeed Wu Chuanyi.

122.  The real dispute as regards Charge 1 are:-

(a)  whether there is a possibility that the motorcycle had been abandoned by its owner;

(b)  to a lesser extent, whether there is a possibility that D2 believed that the motorcycle had been abandoned;

(c)  whether D2 had the mens rea to steal the motorcycle; and

(d)  did he flee from the police because he knew he had committed theft.

123.  First of all, I deal with the prosecution witnesses.

124.  It is noted that PW1 made mistakes in relation to the UID of his team Sgt, the make of the motorcycle (he said it was a Yamaha), and he made a wrong identification of the subject motorcycle (he thought there was a scene reconstruction with the subject motorcycle being placed back at the scene of the theft for a photoshoot).  Despite all that, I am satisfied on a reading of his entire evidence that he was both credible and reliable in relation to the other aspects of his evidence.

125.  In relation to PW3, he was the officer that subdued and arrested D2.  I note that his description of D2’s upper clothing is slightly different from the description given by PW1.  However, the difference is not such as to make both versions incompatible with each other.  On a reading of his entire evidence, I am satisfied that he was both credible and reliable.

126.  In respect of PW4, he was the initial exhibits officer.  His evidence was that he did not step onto the back compartment of 7-seater during the second search.  All he did was he bent his body so that his head, torso and arms were extended into the compartment with his feet on the ground.  I note PW2’s evidence was that PW4 did step onto the compartment.  I took into account PW2 was observing at the opposite side to PW4 in a less than perfect lighting condition.  I ruled that PW2 was wrong in this observation.  I am satisfied that on a reading of his entire evidence, PW4 was both credible and reliable.

127.  Finally, PW5, he was a detective officer from a unit entirely different from the rest of the prosecution witnesses.  He took over the investigation.  I have already dealt with a less than satisfactory aspect of his evidence.  His remaining evidence is not material to the issues in this trial.

128.  I now deal with the defence witness ie D2.  I bear in mind he has a clear record.  A lot of his evidence has been challenged.  His credibility was in issue.  I took care to look at his evidence alone without reference to the evidence of the other witnesses.  I concentrated on his evidence on Charge 1 because that is the only material evidence now.  What he was saying was that he was simply taking the benefit of a lift extended to him by D1 (whom he had known for only about 3 months)  after they had spent more than 2 hours walking together in the Sham Shui Po night market starting from midnight.  It was by chance they met at about midnight.  I found the chance meeting unconvincing.  I found the walking around for more than 2 hours post-midnight even less convincing especially where there was not even a purchase by D2 after all this time.  But the most difficult part of the defence case was that according to D2, there was a passing of a motorcycle by a Chinese male to D1 in the small hours of the day purportedly as a gift, this especially so when the Chinese male simply disappeared when only moments later D2 came around to the rear to assist in the loading of the motorcycle into the back compartment of the 7-seater.

129.  D2’s description of his getting hold of the rear of the motorcycle and D1 getting hold of the front of it and together they loaded it into the back compartment of the 7-seater with only him (D2)  climbing on board during the process just doesn’t match with the orientation of the motorcycle as found and photographed by the police (see P1(10-12)).

130.  I also found his explanation of fleeing from the 7-seater because of panic unreasonable.  It must have been clear that they were intercepted by an intervening police van from the right.  D1 ran for reason best known to himself.  D2 was a person of clear record.  He was not an illegal immigrant. As far as he was concerned, he was just heading home.  There was no reason for panic, and no reason to run.

131.  For these reasons, I do not regard D2 as a credible witness and I reject his evidence in respect of Charge 1 including the course of interception and arrest.

132.  Now, I return to look in more detail the evidence of the material prosecution witnesses.

133.  PW1 described there were two sightings of the two African males. Basically he identified them by clothing alone because the two males had masks on (as was the general practice at the time).  That is, the driver’s (D1’s)  clothing matched that of the first male of the first sighting.  The passenger’s (D2’s)  clothing matched that of the second male of the first sighting.  I applied the Turnbull’s guidelines and I do not accept beyond a reasonable doubt that D1 was necessarily the first male of the first sighting; nor do I accept to the same standard that D2 was necessarily the second male in the first sighting.

134.  However, there has never been any dispute that D1 was the driver and D2 was the passenger of the 7-seater.

135.  Except for the minor mistakes that PW1 made in his evidence, I accept PW1’s evidence to the full extent.  What that means is I accept that there was no Chinese male.  I accept that D1 and D2 loaded the motorcycle onto the 7-seater with each person on one side of it.  I accept that D2 got back to the 7-seater afterwards by the front passenger door.

136.  PW3 was the arresting officer of D2.  I accept his evidence to the full extent which includes the course of interception and the two arrests of D2.  I note that he has not mentioned about a cap being worn by D2 (cf what PW4 says).  But the time references could be different meaning there is not necessarily any contradiction between the two witnesses’ versions.

137.  PW4 was the initial exhibits officer.  I accept his evidence to the full extent but one aspect is worth mentioning.  That one aspect was he was the only witness who said D2 was wearing a grey cap (P10)  which fell off during the struggle.  According to PW1, it was D1 who was wearing a grey cap at an earlier time when D1 and D2 were at Reclamation Street.  According to PW2, D1 was wearing a grey beanie after arrest.  Now there might be no contradiction among these witnesses in that D1 was wearing P10 at an earlier time but he was wearing a grey beanie at a later time; and that D2 was wearing no hat at an earlier time but he was wearing P10 at a later time.  In any event, I do not think this matters really in the context of the whole of the evidence.

138.  PW5 was the Investigation Officer who arrived late at the scene.  His significance is really on the identification of the motorcycle.  This aspect of his evidence has already been dealt with above.

139.  I now deal with the issues in light of evidence which I accept.

ABANDONMENT AND THE BELIEF OF ABANDONMENT

140.  I note that the motorcycle was dusty and had some scratches on it and had no number plates at front or back. These pieces of information only shows that the motorcycle became out of use.  A motorcycle per se is a valuable piece of property.  This particular one was reasonably new at the time – it was manufactured in 2016 and the date of its first registration was 5 December 2017 (see P3).  There is no clear evidence it had been abandoned by its owner.  On the contrary, a closer examination of its photos (see P1(10-12))  shows its various parts were intact and it could be taken apart for sale of its parts.  What’s more, P1(10)  shows that the left side pedal has been tied by a red string which could be taken to mean that the owner did not want the motorcycle to be tampered with.

141.  Defence tried to make a point that since the owner Wu Chuanyi appears to have avoided the police’s attempts to locate him with a view to calling him as a witness, it must mean that he had abandoned the motorcycle at the time of the alleged offence.  With respect to Ms Alva, I beg to disagree.  The offence is said to have occurred on 28 November 2020.  As I understand it, a witness statement has been taken from Wu.  It was only many months after that the police wanted to locate him for court purposes.  I do not think one could equate Wu’s attempts to evade the police for court purposes, if that be so, to an indication of an intention to abandon the motorcycle back at the end of November 2020.

142.  I alerted myself to the evidence adduced and the absence of other possible evidence which might assist the defence; and I reminded myself of any possible handicap and impact that might be suffered by D2 in running his defence of abandonment due to Wu’s absence.  I concluded there is no unfairness to D2.

143.  Regarding the possibility of D2’s belief that the motorcycle had been abandoned, the simple fact is he never said so in evidence.  There is therefore no evidence he held or possibly held that belief.

MENS REA

144.  On a totality of evidence, there was clear evidence to show a theft had taken place.  This was an activity in the depth of the night, where necessarily there would have been few pedestrians around.  A 7-seater with a large back compartment was engaged to remove the motorcycle.  The 7-seater did not have proper registration plates on but had only T-plates hung on the front and back.  The two T-plates had different numbers on them (there is no evidence D2 knew about this fact though).

145.  Against D2 as a knowing participant, he travelled on the 7-seater to the scene of alleged crime with D1; he was many miles from his reported address in the small hours of the day (see his Form 8 exhibit P8); he helped upload the motorcycle onto the 7-seater.  He had gloves on upon arrest.

146.  All this evidence points to the conclusion that D2, together with D1, had the mens rea to steal the motorcycle (both limits of Ghosh test considered).

EVIDENCE SUPPORTING THE PROSECUTION CASE

147.  Flight is something that the prosecution relies on.  I have rejected D2’s reason for running away from the police.  On the evidence which I accept, I find that there is no reason for D2 to run away from the police or to struggle upon being stopped except from trying to evade arrest by the police for a crime he knew he had committed.  To this extent, the evidence of his flight supports the prosecution case.

FINDING OF FACTS

148.  I find, inter alia, the following facts against D2.

149.  On 28 November 2020, at about 3:47 am, a black 7-seater stopped by the motorcycle parking spaces outside Reclamation Street.  The front of 7-seater had a red number trade plate “T12247”, while the back of the 7-seater had another red number trade plate “T12389”.

150.  D1 and D2 then alighted the 7-seater.  The duo then lifted a black motorcycle (later known to have registration number VD 8620 and chassis number RGTHY150JGT010028)  into the back of the 7-seater.

151.  D1 and D2 then got into the 7-seater and drove off along Reclamation Street in the direction of Mong Kok and towards Sham Shui Po.

152.  At about 4:04 am, the 7-seater stopped at a traffic light on Lai Chi Kok Road, near Tonkin Street.  A police vehicle drove into the lane where the 7-seater was and stopped in front of it.  The 7-seater collided into the near side of the police vehicle.

153.  D1 opened the driver’s door and exited the 7-seater and fled.  D2 followed D1 and fled via the driver’s door.  After a short chase by the police, D2 was eventually subdued and arrested.  D2 had labour gloves on at the time of arrest.

154.  The motorcycle belonged to Wu Chuanyi.

155.  At the material time and place, D2 being a Form 8 recognizance holder, together with D1, stole the motorcycle, property belonging to Wu Chuanyi.

CONCLUSION

156.  For the above reasons, I found D2 guilty of Charge 1 but not guilty of Charge 4.