HKSAR v. O'NEILL ALEXANDER DUNCAN

DCCC 1152/2021

[2023] HKDC 197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1152 OF 2021

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REASONS FOR VERDICT

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I.  INTRODUCTION

1.  The 2^nd Defendant (“D2”) faced one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance. The particulars of the offence was: on 26 June 2021 in Hong Kong, D2 dishonestly undertook or assisted in the retention, removal or disposal of certain stolen goods, namely one safe, property belonging to Tsoi Hon-kwong trading as Propice Human Resources Company, by or for the benefit of another, knowing or believing the same to be stolen goods.

2.  D2 pleaded not guilty to the charge.

3.  This is a case against D2 for handling the safe after it was stolen by D1 and a person known as Cloyd at about 4:00 a.m. on 26 June 2021. It is the Prosecution’s case that D2 provided a suitcase with wheels from his home to D1 to transport the safe after the burglary was committed. Prosecution also contended that D2 went with D1 to a guesthouse known as Phoenix Apartment (“the Guesthouse”) and subsequently moved the safe with D1 and Cloyd to D2’s friend Howard to open the same. (Paragraph 12.3 of the Prosecution’s Written Closing Submissions).

4.  The issues of the present case are whether the prosecution proved the following two elements of crime beyond reasonable doubt:

(1) D2 undertook or assisted in the retention, removal or disposal of the safe; and

(2) D2 knew or believed the safe to be stolen good.

Matters not in dispute

5.  The Prosecution tendered two sets of admitted facts ([P10] and [P11a][P11b]) pursuant to section 65C of Criminal Procedure Ordinance, Cap. 221. The facts contained therein was admitted by D2. Facts admitted pursuant to section 65C are conclusive evidence. I give full weight to these facts.

6.  The admissions under [P10] covered that Mr. Tsoi was the owner of the shop being burglarized. The burglary was committed at approximately 4:00 a.m. on 26 June 2021. A safe in grey colour worth HK$1,600, cash of HK$58,000 inside the safe and 3 mobile phones worth around HK$1,000 in total were found missing. They were stolen by SY Manuel Jr. (“D1”), together with another person who having entered as a trespasser of the shop. The continuity of the chain of all exhibits from the time of seizure up to and including the time of production in Court was also admitted.

7.  There was no dispute that D2 did not commit the burglary.

8.  D2’s identity was not disputed. CCTVs captured the movement of D1, D2 and Cloyd in the Guesthouse. The defence did not dispute what was captured and the photographs screen-captured from the CCTVs. The CCTVs [P4a][P4b] of the ground lobby and elevator of the Guesthouse were tendered by the Prosecution through calling police officer, DPC19819 (“PW5”). The photo album containing 19 marked screen-captures from the CCTVs, the identities shown in respect of each persons and the written descriptions in each of the three columns beneath the 19 marked screen-captures were admitted to be true and accurate under admitted facts [P11a][P11b]. The photo album was marked as exhibit [P4(d)(1 to 19)].

9.  The movement of D1, D2 and Cloyd in the Guesthouse shown by the CCTVs and the photographs in the photo album [P4(d)(1 to 19)] was summarised as follows:

Actual Time	Description
03:42:04	D1 and Cloyd entered the ground floor lobby
04:04:38	D1 and Cloyd left the ground floor lobby
04:21:55	D1 and Cloyd moved a white black plastic bag into the ground floor lobby
04:33:09	D1 changed to a grey short-sleeved T shirt and left the ground floor lobby
04:49:48	D1 replaced with a white short-sleeved T-shirt and hand luggage which was borrowed from D2 entered the lobby
04:50:02	D1 and D2 (man in red shirt) entered the lobby
04:50:05	D2 (wearing a red short-sleeved T-shirt) and D1 (wearing a white short-sleeved T-shirt) entered the elevator
04:50:26	D2 (wearing a red short-sleeved T-shirt) and D1 (wearing a white short-sleeved T-shirt) walked out of the elevator
05:00:36	D2 (wearing a red short-sleeved T-shirt), D1 (wearing a white short-sleeved T-shirt) and Cloyd (wearing a black short-sleeved T-shirt) entered the elevator with a suitcase
05:01:00	D2 (wearing a red short-sleeved T-shirt), D1 (wearing a white short-sleeved T-shirt) and Cloyd (wearing a black short-sleeved T-shirt) walked out of the elevator with a suitcase in hand
05:01:00	D2 (wearing a red short-sleeved T-shirt), D1 (wearing a white short-sleeved T-shirt) and Cloyd (wearing a black short-sleeved T-shirt) left and with a suitcase in hand

II.  PROSECUTION’S CASE

10.  The Prosecution relied on two cautioned statements (one recorded in a police notebook (“the Police Notebook”) [P1] and another in a record of interview (“the Record of Interview”) [P2][P2A][P2B] and the circumstances of the incidents to prove its case. As confirmed by the Counsel for D2 during the trial, there was no dispute as to the voluntariness of D2’s statements under caution.

11.  Prosecution tendered exhibits [P1] to [P12] as evidence. Further, there were three prosecution witnesses in the present case (PW3, PW4 and PW5). As mentioned above, PW5 was the police officer who seized the CCTVs and produced the same as exhibit. His evidence was no longer in dispute pursuant to the admission in admitted facts [P11a][P11b].

12.  PW4 was the interpreter who assisted PW3 in issuing the Notices to Persons in Police Custody or involved in Police Enquiries [P3A][P3B], conducting an interview with D2 and obtaining the Record of Interview [P2]. She confirmed that the whole conversation during the interview was recorded on the Record of Interview and D2 did not raise any requests/questions. Her evidence as contained in her witness statement was tendered through section 65B of Criminal Procedure Ordinance and marked as [P12]. She was not called to testify.

PW3

13.  The main prosecution witness was police officer, DPC11710 (“PW3”). He conducted investigation of the present case and was the arresting officer of D2.

14.  On 28 June 2021, he viewed CCTV footage and noticed that D1 ran up to a building on No. 17 to 19 Lee Garden Road. D1 later left the building with D2 pulling a suitcase with wheels. D2 was captured in the CCTV wearing red top and jean, with white trainers and carrying a red back pack. On 9 pm of 28 June 2021, accompanied by his teammate, PW3 went to the 2^nd floor of No. 17 to 19 Lee Garden Road and located D2 at a subdivided unit. He told D2 that they were police officers and came there for enquires for a burglary case. They were looking for two males and one male was seen going up to the building. He described the appearance and body built of two males. D2 told PW3 that he knew nothing about the burglary. He said a friend of his, JR came to his flat to borrow a suitcase. He also told PW3 that he could help locating D1 and D1 would come to visit him later on.

15.  PW3 stayed in D2’s flat whilst other police went to lay ambush outside of the building for D1. With D2’s consent, PW3 conducted a house search. He seized the backpack and the clothing of D2 and took photographs of them ([P5] to [P9]). He compared the items he seized with the CCTV footage and concluded that D2 was connected to the burglary. On 1:55 am of 29 June 2021, he cautioned and arrested D2 for conspiracy to burglary. D2 replied: “JR came to my home to borrow a luggage box. Then Jr took me to a guest house in Lee Garden. And I saw his friend and a safe. Then we boarded a taxi and I took them to my friend Howard to open the safe but did not know it was stolen.” The reply was recorded in the Police Notebook [P1] and signed by the D2.

16.  At about 2:25 am, D2 was brought to the Wanchai police station for further investigation. Two Notices to Persons in Police Custody or Involved in Police Enquiries (Pol 153) ([P3A][P3B]) were issued to D2. A cautioned statement was taken by PW3 with the assistance of PW4 between 5 pm and 8:55 pm on 29 June 2021. The original was produced as [P2], copy of original as [P2A], and certified translation as [P2B].

The content of [P2][P2A][P2B]

17.  Part of the content of the Record of Interview was repeated as follows:

“Q1: At about 4 am on June 26, 2021, what were you doing?

A1: I was at home preparing to eat. Suddenly my friend JR came over and asked me to lend him a luggage box. I had one, and I didn’t use it, and it was broken. So I lent it to him. JR asked me to go with him to a place. JR took me to a guest house at Lee Garden Road. We took a lift to the first floor. I don’t remember which flat. When we entered the flat, there were a man and a woman inside. I didn’t know either of them. I saw a foam box placed on the floor of the bathroom. Inside the foam box there was a metal box soaking. When the metal box was lifted, there was a noise. So I asked JR what that box was. JR said it was a safe box and that in order to quiet the noise of the box, he soaked it in water.

Q2: Please describe the safe and then what happened

A2: I didn’t really look at it. I just saw that the top was in black colour. Its size was about 2 feet long, 1 foot wide, 1 foot tall. JR said he picked the safe up from the rubbish station, and he asked me to lend him a luggage box to hold the safe, and then he wanted to place it at my home. I didn’t believe what JR said. What he said was suspicious. So I turned him down. I asked him to put it somewhere else. I didn’t want to have anything to do with the safe and I didn’t want it to be near me, so I asked him to take it somewhere else. Then JR and the guy from the guest house put the safe inside the luggage box. Afterwards, JR, the guy from the Guesthouse and I took a taxi from outside PCCW to Wong Nai Chung Road, and then walked to a nearby pedestrian subway to find my street-sleeper friend Howard. Howard said he could use some tool(s) to open the safe. I told Howard that I did not believe the safe was picked up from the rubbish, and that he should not get himself involved. JR took Howard’s bike and left the subway. He rode the bike back after about 10 minutes. During that time the luggage box remained inside the subway. Nobody had touched it. I asked Howard to go to sleep, and then I walked home. And JR and the guy from the guest-house remained in the subway when I left.”

III.  D2’s EVIDENCE

18.  After I ruled that there is prima facie case against D2, D2 chose to give evidence but did not call any defence witness.

26 June 2021

19.  It was D2’s testimony that at about 4:00 a.m. of 26 June 2021 when he was at home with his girlfriend, D1 arrived at his home. He asked D2 to borrow a luggage placed at the staircase outside D2’s home to him. D2 agreed that D1 could have it because the luggage had a crack in front of it and was no longer used by D2. D1 then asked D2 to go with him. He said it only took a few minutes and he wanted to show D2 something. D1 did not specify what he wanted to show D2 and where they were going. D2 agreed to go with him. D1 then took the luggage and they walked to a flat in the Guesthouse.

20.  There were two people inside the Guesthouse. One person D2 later knew his name as Cloyd and another person was a female named Hannah. D1 showed to D2 inside the bathroom. There was a large white polystyrene box placed on the floor. D2 could not see what was inside the box and only saw a black surface of metal inside the white box. D1 told him that was the safe he and his friend found from the rubbish collection point. Cloyd lifted the safe from the polystyrene box which was filled with water.

21.  D2 understood that the rubbish collection point was the one located at the corner of Connaught Road, Wanchai. He was familiar with it because he went there on daily basis to pick up items for second hand sale by way of posting on facebook and through his company. He found a safe many time. D2 added that he would find safe in different collection points once every week and D1 also knew about the collection point. (See [D8][D9])

22.  D2 produced exhibit [D1] which was the photograph captured from his phone showing WhatsApp conversation on 9 June 2021 between him and D1 about locating items from rubbish collection point. He also produced another series of photographs captured from his phone showing he found a safe in the rubbish collection point in Connaught Road in September 2020 as exhibit [D2].

23.  Returning to the incident on 26 June 2021, D1 then asked D2 if he could borrow tools. D2 refused. They then went to the subway in Happy Valley (“the Subway”) with the purpose to borrow tools to open the safe from a male called Howard Kenneth McCall (“Howard”) who lived there. According to D2, Howard was a person he knew for many years. Howard acquainted with D1 and Cloyd two to three weeks before 26 June 2021 since D2 introduced job to Howard and D1. (See WhatsApp messages [D7])

24.  When D2 arrived, he told Howard that his two friends wanted to borrow tools. Howard asked what did you mean by tools. D2 answered that they found the safe and wanted to open it. Later on, D2 became suspicious and said quietly to Howard that he was not sure from where they got the safe; they told D2 that it was from the rubbish point but D2 was not sure entirely; he (D2) did not want to get involved and was going to leave as soon as D1 returned.

25.  D2 testified that he only became suspicious when three of them arrived at the Subway. D2 explained that two things made him suspicious. First was that D1 agreed to get drugs to Howard. Second was that the safe emitting sound. D2 said that D1 behaved normally when he arrived at his home. However, when Howard agreed to lend tools to them and asked if there were any drugs, D1 said to Howard that he would get drugs for him. D1 then left with Howard’s bicycle. However, D1 did not go to the Guesthouse but to D2’s home. D2 knew that D1 came to his home from his girlfriend’s WhatsApp messages. The time he became suspicious was when D1 left with the bicycle, Cloyd slept, he received girlfriend’s message and he told Howard the second conversation.

26.  He also said to Howard: as soon as D1 returned with bike, he was going to leave; after he left, might be Howard did not want to involve himself with this as he (D2) was not 100% sure that the safe came from the rubbish point; he (D2) did not personally go there and found the safe there. Howard looked like taking his advice and went to sleep.

27.  For the second reason, D2 said there was no noise from the safe when he entered the Guesthouse but he came to understand that they put the safe in the water of the polystyrene box because the safe emitting very loud siren. When Cloyd pulled the safe, it started to sound again though not very loud. But it became louder when they were on the street. Therefore, they needed to take a taxi.

28.  D2 said that he did not know the safe was stolen until police arrived his home and told him.

29.  D2 did not leave when D1 had gone on the bicycle because he was not suspicious at that time. But once he received the message from his girlfriend, he was suspicious and told his girlfriend he would return home when D1 came back. He did not want Howard to blame him if D1 did not return with Howard’s bike.

30.  D2 did not see Howard again and D1 returned 10 minutes later. D2 told Howard that his bicycle was here. He also told D1 to make sure to return the tools to Howard. D2 then left and returned to his home. The luggage was not open when D2 was at the Subway. The safe was inside the luggage and not taken out. D2 never touched the safe and was not offered any money for return.

31.  D2 produced exhibit [D3] which were photographs showing WhatsApp message that he provided to the police in the investigation. D2 also produced series of WhatsApp messages between him and his girlfriend as [D4] and the timeline of that evening recorded in his phone [D5].

Arresting night

32.  At 11:45 pm on 28 June 2021, D2 and his girlfriend was at home. D2 was sleeping and heard someone banding the door and saying his name. He did not know who was outside and asked his girlfriend to call 999. Until uniform police arrived, he opened the door. The police in plainclothes showed warrant cards. PW3 told him that they were searching for two people and mentioned to D2 the descriptions. Subsequently, he was shown the photograph(s) of the CCTV and he identified D1 to the police. Then the police told him about the burglary.

33.  D2 was cooperative in the police investigation. D2 also told the police the whole incident on 26 June 2021.

34.  Police once suggested that D2 told D1 that he was not his friend and did not want to see him so that D1 would come. But it was refused by D2. On the other hand, D2 recorded a message that someone was banding the door and needed to get D1’s help and sent it to D1. D1 did come and was arrested by the police laying the ambush. D2 was cooperative also by allowing police to search his house, seize items, take photographs and assisted police in locating Howard. (See WhatsApp conversation in [D6])

IV.  LEGAL PRINCIPLES

35.  This is a criminal case. The prosecution bears the burden of proof. The standard of proof is beyond reasonable doubt. D2 is presumed innocent. He has no duty to prove his innocence and/or raise any doubt. I direct myself that I must be sure of D2’s guilt before I can convict him. If the defence evidence pointing to a defence which is true or may be true, it also follows that there is doubt in the prosecution’s case and D2 shall be acquitted.

36.  No submissions of no case to answer was made by D2. I found that there was a case to answer. Having had his rights been explained by his counsel, D2 elected to give evidence but called no witnesses. I stress that even if his version is not accepted, it remains the prosecution’s duty to prove the charge.

37.  When I make any findings of facts, I am entitled to infer existence of other facts from primary facts. However, the primary facts must be either facts admitted by D2 or facts found to have been proved beyond reasonable doubt. No inference of facts can be drawn against D2 unless that inference is the only reasonable and irresistible inference arising from the facts admitted or proved. On the other hand, even if piece of facts each on its own is not sufficient to support any inference of facts to be drawn, they may be taken together to form a body of facts upon which a proper inference of facts may be drawn. It is because circumstantial evidence works cumulatively, in geometrical progression, eliminating other possibilities, DPP v Kilbourne [1973] AC 729.

38.  I have considered all evidence adduced before me as well as all the submissions.

V.  ANALYSIS OF THE EVIDENCE

Analysis of PW3’s evidence

39.  PW3’s evidence was not extensively cross-examined. There was no cross-examination on D2’s version that D2 had given a full account of the incidents to the police but the records in the Police Notebook and Record of Interview were not the full versions. There was also no cross-examination as to the discrepancies (if any) of what D2 told PW3 and what was recorded.

40.  PW3 was being cross-examined about how the Police Notebook and Record of Interview was recorded. As to the Police Notebook, he confirmed that after D2 gave the reply, he recorded the statement and let D2 read it. D2 agreed and signed. Declaration was signed by D2. I noted that at p. 8 of the Police Notebook [P1], it was stated that “the above record was read by O’NEILL Alexander Duncan and read over to him once by me, he stated that he understood. I then produced an ending declaration for him to write it down….” (emphasis added). As to the Record of Interview, PW3 testified that he was uncertain whether the interpreter read the statement to D2. PW3 confirmed that he did not have any independent memory of the statement made by D2 under caution.

41.  Except that whether the content had been read over to D2 was uncertain, I find that PW3’s testimony was supported by the contemporaneous record in the Police Notebook and the Record of Interview.

42.  I had also observed PW3’s demeanor when he testified and considered the content of his testimony. As to his demeanor, he was firm and specific. For instance, he was questioned that whether D2 spoke very quickly (it is undisputed evidence that D2 was in a condition of bipolar disorder). PW3 answered firmly that D2 did not speak particularly fast and he was able to hear what he said. On the other hand, PW3 was ready to admit the areas that he was not clear such as he agreed that he was not certain whether PW4 had read the statement to D2. He did not tailor his evidence to improve the Prosecution’s case. I find him an honest and reliable witness. I accept PW3’s evidence and attach full weight to his evidence.

43.  Given the above, I also find that even there was no reading over of the records to D2, that did not affect the facts that D2 did read the records and copied and signed the declarations therein. I find that the records in the Police Notebook and the Record of Interview were the accurate record of what D2 responded to PW3 under caution at the material time.

Analysis of D2’s evidence

44.  Various matters in D2’s evidence were not cross-examined by the Prosecution, for instance,

1)  D1 and D2’s previous experiences in collecting items from rubbish collection point;

2)  D2 was able to find safe from rubbish collection points on regular basis and even on one occasion found valuable items inside a safe;

3)  D2 was cooperative with the police in the investigation by helping police to lay ambush of D1, providing information of Howard and his WhatsApp messages with his girlfriend and so on;

4)  There were CCTVs installed at the Subway in Happy Valley which were not obtained by the police;

5)  D2 went to the Subway with D1 and Cloyd to find Howard and what happened thereat including the luggage was not opened and the safe inside the luggage was not taken out;

6)  D2’s evidence that he was not promised anything from the safe and he did not receive anything from the safe.

45.  D2’s account of the incident in the Guesthouse and at the Subway was basically consistent with the statement in the Record of Interview.

46.  However, the most controversial matter in D2’s testimony was his knowledge and/or belief of the safe being a stolen good. In respect of this, I find D2’s evidence inconceivable and unreasonable.

Inconsistency with Police Notebook [P1]

47.  In respect of the Police Notebook [P1], D2 said that the reference in p. 7 that “and I took them to my friend Howard to open the safe but did not know it was stolen” was not actually the words he uttered to the police. He was told by police that he would be given the chance to make a full statement. He said that he already told the police what happened at that night. What he said was actually that he took D1 and Cloyd to borrow tools from Howard but not open the safe.

48.  I have not lost sight of the unchallenged fact that D2 was in a condition of bipolar disorder. He spoke fast in the witness box and had been asked to slow down or break his sentence in shorter parts many times. However, the contention that D2 spoke very quickly when PW3 recorded D2’ statements in the Police Notebook was rejected by PW3 firmly.

49.  Despite his condition, I do not accept D2’s explanation. He was arrested and cautioned by PW3 before making the statement. He read it through before he put down the declaration and signed. He was plainly aware of the importance of the accuracy of the statement. His explanation is unpersuasive.

Inconsistency with Record of Interview [P2][P2A][P2B]

50.  It was pointed out to D2 during cross examination the discrepancies of his evidence in chief and the Record of Interview:

(1) D2 in examination in chief mentioned that D1 could take the luggage while it was mentioned in the Record of Interview that D1 borrowed the luggage from D2;

(2) He said he knew Cloyd and Hannah in examination in chief but he said that he did not know them in the Record of Interview (though Hannah’s name was mentioned in the Record of Interview);

(3) As mentioned in the Record of Interview, D2 already became suspicious when he was in the Guesthouse and did not believe what D1 said about picking the safe up from the rubbish station. However, he said in the witness box that he became suspicious only when he arrived at the Subway and it was the emitting noise and D1’s behavior at the Subway that made him suspicious.

51.  D2’s explanation was again that he gave full account of what happened to the police and was given to understand that he was able to give a full statement later. He also mentioned that he was not treated as an accused on 28 June 2021 and was cooperative with the police. He only scanned through the Record of Interview.

52.  I did not accept his explanation. He was arrested and cautioned before he confirmed the content of the Record of Interview. Procedures such as body search and issuance of Notices to Persons in Police Custody were completed. It was inconceivable that he would hold the belief of his explanation. It is certain that he tried to give a version that he became suspicious not as early as in the Guesthouse so as to refute his knowledge and/or belief that the safe was a stolen good.

53.  As mentioned in my analysis of PW3’s evidence, despite that there was discrepancy and uncertainty as to whether the statements in the Police Notebook and the Record of Interview were read over to D2, I am satisfied that D2 had the opportunity to read both the statements before he signed on them. He understood clearly the nature of the statements as he was cautioned before making the statements. He also wrote the declarations and signed thereon which showed that he understood and agreed to the content of the declarations. I do not accept D2’s evidence that the responses recorded in the Record of Interview were not the full version of what he told the police.

D2’s version was unreasonable

54.  I also find D2’s account of the incident on 26 June 2021 superficial and unreasonable. For example, when D1 asked D2 to go with him to a place, D2 did not bother to ask for more details. Further, he was supposed to spend only a few minutes for going out with D1, he eventually went to the Subway with D1 and Cloyd in the small hours while according to him, the safe was of no concern or interest to him. It was particularly absurd that D1 and Cloyd actually knew Howard and D1 knew the Subway of where Howard lived.

55.  Another example of unreasonable behaviour was that D2 mentioned that he became suspicious at the Subway after receiving his girlfriend’s message that D1 had come to his home. However, D2 still stayed at the Subway for D1’s return. He even spent time to take photographs of the chair instead of returning home immediately. His explanation that he wanted to make sure that D1 returned with Howard’s bike when contrasted with his suspicion and his purported attitude of distancing himself from the matter was not convincing.

Evasive answer

56.  D2’s response to questions concerning GPS was unsatisfactory. When D2 was asked about the message [D4(3)] at 5:20 am “And if it’s got alarm what if it’s got GPS also”, D2 was able to tell that GPS referred to global positioning system which facilitated tracking. When asked why it interested him, his answer was that it did not interest him, it was just might be it might have GPS also. When being further pressed, he said that it was a bit suspicious and suspicious on what was going on him. He further mentioned that if he believed the safe was stolen, he would not be in the public area next to it for 30 minutes.

57.  The message evidently showed D2’s concern that the safe might contain a GPS system and would be able to track the people who took the safe. However, he was evasive especially when being further pressed and diverted his evidence to his presence in the public place. I find that D2 was evasive and tried to distance himself from the concern of being possibly tracked by GPS. I reject his explanation that the GPS did not interest him.

CCTVs

58.  It is D2’s submissions that the CCTVs did not show that D2 was touching the luggage and D2 had control over the safe. It only captured that the person in control of the safe was D1. D2 submitted that it is consistent with D2’s oral evidence that he never touched the safe (paragraph 17 of D2’s Closing Submissions). However, the CCTVs not capturing any touching of the safe by D2 did not support nor rebut D2’s oral evidence of not touching the suitcase in other occasions such as in the Guesthouse, the taxi and at the Subway.

59.  The same logic applied in relation to the contention that no evidence from the CCTVs installed at the Subway was adduced. That no such CCTV evidence was adduced did not support nor rebut D2’s testimony of what was said and/or what happened at the Subway.

WhatsApp Messages

60.  D2 also relied on the WhatsApp conversation between him and his girlfriend [D4] and submitted that they supported that D2 “wants nothing to do with the safe - that is none of his business” (paragraph 18 of D2’s Closing Submissions).

61.  It should be noted that these messages were exchanged at the time when D2 was already at the Subway, i.e. the incident of allowing D1 to use the suitcase, the incident in the Guesthouse, taking taxi to the Subway and requesting Howard to provide tools as alleged had already been completed.

62.  In respect of the contention that D2 wanted nothing to do with the safe, when one put these WhatsApp messages in its proper context of the conversation, one would however note that:

- Page 2 [D4(2)] - “Nothing to do with us, jr…”: the previous message from D2 was actually about “And Howard wants to smoke sigh” and D2’ s girlfriend mentioned among others “We haven’t got much left”. It was an exchange between D2 and his girlfriend concerning providing drugs to D1 and/or Howard.

63.  In respect of other examples cited in the Closing Submissions, despite D2’s testimony, it transpired that:

- Page 3 [D4(3)]- “Yeah no need to fuel people doing [there] own things.”: what immediately followed this message was D2 messaging that “And if it’s got alarm what if it’s got GPS also”. Undoubtedly, it showed that D2 already concerned about the possible tracking by GPS and tried to distance himself from the others. It also followed by the message in Page 4 [D4(4)]: “They had it in water in a guest house in Lee garden when I got there”, then “Headache”… “No need to care what others are doing.” All these D2’s messages purported to distance himself was subsequent to the message about GPS.

64.  See also page 6 [D4(6)] - “If they get jackpot good for them but it wouldn’t last long probably like last time jr got caught.” It is apparent that D2 was in mind of D1’s previous imprisonment when he made this message. Any “jackpot” from the safe would link to criminal activity that might put D1 in the prison again. It follows that D2’s testimony that he only knew the safe was stolen when the police told him was doubtful.

65.  With regards to page 10 [D4(10)]- “Just sat here when jr comes back I will come back”, “OK I take photos of chair and then I come back”: according to D2’s testimony, it was the time when he was already suspicious. Conversely, he still stayed at the Subway to wait for D1 to come back and even spent time to take photographs of the chair.

66.  D2’s counsel submitted that these messages were consistent with D2’s oral evidence of his plan for the evening, namely that his girlfriend was at home cooking chicken and so on. However, these messages were not able to explain his earlier involvements when he let D1 have the suitcase, accompanied D1 to the Guesthouse, and with Cloyd as well to the Subway which were in exact opposition to his purported state of mind of distancing himself from the incident. His purported position of rejecting D1’s request to take the safe to open it at his home and to lend tools to D1 and Cloyd in the Guesthouse only showed that he was already aware of the suspicion arisen in the circumstances but nonetheless involved himself by letting D1 to have the suitcase and going to the Guesthouse and Subway with them.

67.  D2 in its Closing Submissions mentioned that the police had the evidence of the WhatsApp messages [D3][D4] but did not produce them to the Court. I do not think that these messages could assist D2’s case in respect of the incidents before they arrived at the Subway.

Siren

68.  Counsel for D2 emphasized D2 has all along been cooperative with police and provided the information of siren going off in the safe to police with candid. It is submitted that if in fact the siren had caused D2 to know/believe the safe was stolen, one would not have expected him to volunteer that to the police. I do not agree with this submission. Suspect provide information to police for different reasons. Should D2’s contention be correct, no inculpable information would ever be received from any suspect.

69.  It is also submitted that just because there is a siren going off inside the safe does not mean that the siren is going off because the safe has been stolen (paragraph 28(b)(i) and (ii) of D2’s Closing Submissions). I opine that Counsel of D2 had mixed the concept of what D2 perceived from the circumstance of a going off siren with what led to the siren going off. Further, there is no evidence from D2 that he reckoned the siren was coming from something else inside the safe instead of the safe.

70.  I shall further assess D2’s testimony that he only became suspicious at the Subway. It is D2’s submissions that the Court has to consider D2’s subjective belief instead of some notional reasonable person might have thought when D1 said that the safe was collected from the rubbish collection point. D2’s submission was that D1 and D2 were friends and so a degree of trust was understandable and the explanation was unremarkable because D2 knew that D1 went to the collection point regularly and D2 himself also regularly came across abandoned safes at the rubbish collection point (paragraph 29 of D2’s Closing Submission). Conversely, according to D2’s own evidence, the emitting sound of the safe was one of the reasons giving rise to D2’s suspicion. D2’s trust on D1 was not unqualified.

71.  It is further submitted that there was only a short period of about half an hour that D2 had time at the Subway to reflect on the situation and he began to have doubts. It is the evidence of someone who is not sure what the true situation was. However, it is contrary to D2’s statements under caution and shall be rejected.

Conclusion on D2’s Evidence

72.  Before I leave this topic, D2 was cross-examined of why he did not inform the police of his history of visiting rubbish collection point. I disregarded this part of cross-examination since D2 has the right to silence. He was not required to assist the police and nothing adverse had been drawn from that.

73.  From above, I conclude that D2 was not a reliable and honest witness. I reject D2’s evidence that he only became suspicious when he received his girlfriend’s message at the Subway.

VI.  DISCUSSIONS

74.  Despite that I rejected the evidence of D2, the burden was on the Prosecution to prove its case beyond reasonable doubt.

75.  It is the Prosecution’s submissions that D2’s acts constituted removal and disposal of the safe under the charge. In respect of the knowledge/belief, the Prosecution suggested that D2 had the knowledge or belief that the safe was stolen when he was shown the safe by D1 and Cloyd at the Guesthouse. (Paragraphs 2 and 11 of the Prosecutions’ Written Closing Submissions)

Knowledge/Belief

76.  I have taken into account of D2’s undisputed evidence that both him and D1 had visited the rubbish collection point in Connaught Road before and they had experience in searching items of value for sale or for their own use [D1]. D2’s experience in finding items of value or selling the safe for scrap metal was corroborated by contemporaneous evidence [D2][D8][D9][D10].

77.  I have directed myself to the test on knowledge under R v Moys 79 Cr App R 72, CA, that on a charge of handling stolen goods, “the question is a subjective one and it must be proved that the defendant was aware of the theft or that he believed the goods to be stolen. Suspicion that they were stolen, even coupled with the fact that he shut his eyes to the circumstances, is not enough, although those matters may be taken into account by a jury when deciding whether or not the necessary knowledge or belief existed.” (emphasis added)

78.  There are aspects of evidence that support that D2 subjectively knew or believed that the safe was a stolen good.

79.  First the circumstantial evidence was D2 saw the safe soaking in the water in a foam box and emitting the sound of siren in the Guesthouse.

80.  D2 also gave statements under caution recorded in the Police Notebook and Record of Interview.

81.  There are exculpable parts in these statements:

- Before D2 was arrested and cautioned, he had told PW3 that he knew nothing about the burglary.

- It was recorded in the Police Notebook after arrest and caution: “… Then we boarded a taxi and I took them to my friend Howard to open the safe but did not know it was stolen.”

82.  Conversely, there are parts in these statements, admitting the suspicion as early as in the Guesthouse:

- In the Record of Interview, when D1 mentioned that he picked up the safe in a refuse station and request to put the safe in D2’s place, it was recorded: “I[D2] didn’t believe what JR said. What he said was suspicious.”

- “So I turned him down. I asked him to put it somewhere else. I didn’t want to have anything to do with the safe and I didn’t want it to be near me, so I asked him to take it somewhere else.”

- “I told Howard that I did not believe the safe was picked up from the rubbish, and that he should not get himself involved.”

83.  I have considered the exculpable parts. They were general denials. However, the parts on suspicions were more detailed and precise. It stated in clear terms that D1’s explanation of picking the safe up in a refuse station was not believed and was suspicious. It was coupled by the act of turning down the request of putting the safe at D2’s home and distancing the safe from D2’s home. The disbelief of D1 was also mentioned when D2 recited the conversation between him and Howard.

84.  Given the above, I am sure that D2 did not believe that the safe was collected from rubbish collection point when he was at the Guesthouse. No other explanation of where the safe came from had been given by D1. I directed myself of Moys that suspicion even coupled with the fact that shutting one’s eyes is not enough. Conversely, in that circumstances, no other explanations could and had come to D2’s mind apart from the facts that safe was a stolen good. The only reasonable and irresistible inference was that D2 knew and/or believed subjectively that the safe was a stolen good as early as he was in the Guesthouse.

85.  It was mentioned during D2’s testimony that D1 told him that he had been imprisoned twice for burglary. However, D2 said that D1 had shown that he was determined to reform himself. Even without taking into account of this evidence, I shall come into the same conclusion in the preceding paragraph since the admission of the suspicion and rejection of D1’s explanation in the circumstances was unequivocal.

Acts

86.  Only the acts that were conducted by D2 from the Guesthouse when he had the knowledge and/or belief were relevant.

87.  As transpired from the Police Notebook and the Record of Interview, these are the exculpable parts:

- In the Record of Interview: “During that time the luggage box remained inside the subway. Nobody had touched it. I asked Howard to go to sleep, and then I walked home. And JR and the guy from the guest-house remained in the subway when I left.”

88.  These are the inculpable parts in these responses:

- Recorded in the Police Notebook after arrest and caution: “… Then we boarded a taxi and I took them to my friend Howard to open the safe but did not know it was stolen.”

- In the Record of Interview: “Afterwards, JR, the guy from the guesthouse and I took a taxi from outside PCCW to Wong Nai Chung Road, and then walked to a nearby pedestrian subway to find my street-sleeper friend Howard. Howard said he could use some tool to open the safe.”

89.  The exculpable parts referred to acts at the Subway but not the incidents in the Guesthouse. From the inculpable parts mentioned above, it was admitted by D2 in the Police Notebook that “I took them to my friend Howard to open the safe.” Words of similar effect were repeated in the Record of Interview that they took a taxi and then walked to the Subway “to find” Howard. “Howard said he could use some tool to open the safe”.

90.  The acts were consistent with the CCTVs in the Guesthouse that D2 together with D1 and Cloyd left together. Despite that there was no evidence of D2 touching the safe, the admission under the statements was certainly that D2 took D1 and Cloyd to Howard to open the safe. The only conclusion was that D2 undertook or assisted in the removal and disposal of the safe by or for the benefit of another.

91.  I have directed myself to the test in Ghosh and find that in the circumstances, D2 must have realized that what he did was dishonest.

VII.  CONCLUSION

92.  In conclusion, I find that the Prosecution has proved beyond reasonable doubt of the elements of crime of the charge D2 faced. I convict D2 accordingly.