HKSAR v. PATARROYO JIMENEZ GUILLERMO

DCCC 324/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 324 OF 2016

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REASONS FOR VERDICT

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1. The defendant faces one charge of attempted theft, contrary to section 9 of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Cap. 200. He has denied the charge. The charge relates to an attempted theft of a smartphone from the right front pocket of the coat worn by a female, PW1 in these proceedings – more commonly referred to as attempted pickpocketing.

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

3. There were 3 prosecution witnesses. At the conclusion of the Prosecution case, no submission of no case to answer in respect of the charge was made by the Defence.  I found that there was a case to answer on the charge.  Having had his rights explained to him by his Counsel, the defendant elected to give evidence and called no evidence.  After hearing final submissions from Counsel, I adjourned the matter until today to deliver my verdict.  I have carefully considered all the evidence adduced before me as well as the submissions of Counsel for the Prosecution and Defence.  I have borne in mind at all times that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt.

4. Facts admitted by the Prosecution and Defence at the outset under Section 65C of the Criminal Procedure Ordinance, Cap. 221, were produced and marked as Exhibit P1. These disclosed, inter alia, that:-

a) The 8 photographs in Exhibit P2 were taken by PC 9272 (PW2 in these proceedings and hereinafter referred to as PW2). The index to the volume of the 8 photographs was true and accurate. The volume of 8 photographs were produced by agreement and marked Exhibit P2 (1) to (8);

b) PC16022 (PW3 in these proceedings and hereinafter referred to as PW3) interviewed the Defendant under caution between 18.50 hours and 20.50 hours on 7 February, 2016. The record of interview was a true and accurate record of what transpired during the interview and was made voluntarily by the Defendant. The said record of interview was produced by agreement and was marked Exhibit P3 and its certified English translation Exhibit P3A.

5. Ms. Sho Wai-ki, PW1 in these proceedings and hereinafter referred to as PW1, gave evidence that she was standing near the “Wo Mei Tin” snack shop set out in the particulars of the charge on 6 February, 2016 at about 8 p.m. She was with her friend Ms. Chan Po-yan.  PW1 is aged 21 years and a student.  Photos 6, 7 and 8 of Exhibit P2 depicted the snack shop in question from various angles.  At the material time, her friend had made payment for some food from the snack shop and was standing in line waiting to collect the food and PW1 stood behind her friend – she was eating some food they had bought earlier from another snack shop. She was wearing a coat, which was produced and marked as Exhibit P4 – Photo 1 of Exhibit P2 was a photograph of how she was dressed at the material time and depicts her wearing her coat, Exhibit P4.  She also had her smartphone Exhibit P5 with her – Photos 3 and 4 of Exhibit P2 depict respectively the front and back of her smartphone Exhibit P5.  When she was standing behind her friend, her smartphone was in the right pocket of her coat. She felt her smartphone being slowly taken out of her coat pocket – she immediately stepped to her left and turned her body to her right to look behind her – she also pressed her hand to her pocket to make sure her phone was still in her pocket. She saw a man, whom she subsequently identified as the defendant, standing very close to where she had originally been standing. As she did not see who had tried to remove her mobile phone, she was not sure if the defendant was the one but he was the only one standing very close to where she had been standing. While she was still mulling over this, a male wearing a knapsack came over and tapped the shoulder of the male and spoke to him, although she could not hear what was said as he spoke in a low voice and the mall was noisy.  That male then spoke to her asking if the defendant had stolen her phone. As she wasn’t sure who he was, she did not reply. Then he asked again, speaking in punti and saying he was a police officer.  The defendant was subsequently arrested by this male. PW1 was cross-examined by Mr. Cahill for the defendant.  He suggested to her that in the mall, at that time, as it was crowded with people walking back and forth and past her and her friend, people could bump into people. She agreed with him that it was a possibility.  He suggested to her that she was not interested in the phone in her pocket while she was standing there eating but she disagreed. The pocket of her coat was not particularly large, and although wide enough for the phone to move sideways, it was not so big that the phone could move up and down in the pocket.  The phone rarely moved when she moved her body.  She herself knew, and she had been warned by others, that by keeping her phone like that in her pocket, it was very easy to steal.  So she said she was very focused on whether the phone was in her pocket, and she would from time to time press on the pocket of her coat to make sure it was there. Also, the lining of the pocket was quite thin so she could feel the phone in her pocket.  It was suggested to her that every movement of the phone in her pocket made her suspicious and she replied that if the phone moved she would check as she feared it might fall out. But this was the first time that she had felt as if someone was taking the phone out of her pocket.  She was referred to her witness statement where she said when she felt the sensation, she turned around and saw the ‘foreign person’ and then put her hand into her pocket to see if her phone was still there. She agreed she had said that in her witness statement.  Counsel suggested she had only decided to check if her phone was still there after she saw the ‘foreign male’ - she disagreed – she said she felt it was still there and when she was looking at him she immediately pressed on the pocket – it all happened quickly – she described it as 1 to 2 seconds from when she stepped to her left, turned, saw the male and pressed on her pocket. At first she was unsure who had tried to take her mobile phone out of her pocket, and she looked around and the only one she saw standing nearby who could have done it was the defendant – he had his garment over his right forearm and covering his right hand. She explained that from the angle that she was looking at him, she could not see the right hand, although she saw the garment on his right forearm.  It was put to her that she was mistaken when she said she felt someone had tried to take her mobile phone out from her pocket but she disagreed.

6. PW2, DPC 9272 Chak Ho-kuen, was the police officer who took the photographs contained in Exhibit P2. He also explained what each photograph depicted. He explained that Photo 2 of Exhibit P2 was a photograph of PW1 wearing her coat, and with her mobile phone in her right pocket. PW1 had herself put the phone in her pocket for him to photograph it.  He also confirmed that the photographs 6, 7 and 8 of Exhibit P2 were photographs of the snack shop “Wo Mei Tin” taken from different angles, and he had taken these three photographs at about 21.55 hours on 6 February, 2016.  He had also conducted a house search of the defendant’s home with the defendant the following day, but nothing suspicious was found.  There was no cross-examination of PW2.

7. PW3, PC 16022, Ho Chiu-wa, was the police officer who arrested the defendant. He was on duty in plainclothes at the material time and was patrolling outside “Wo Mei Tin” at about 20.12 hours on 6 February, 2016.  He confirmed that photographs 6, 7 and 8 of Exhibit P2 depicted the vicinity where he was patrolling at the material time.  He said he was standing about 3 to 4 feet from the counter of ‘Wo Mei Tin”. He saw a male, whom he subsequently identified to be the defendant, and described what the defendant was wearing including that he was carrying a deep coloured garment over his left forearm – that garment he later seized from the defendant – it was Exhibit P6 – and was depicted in Photograph 5 of Exhibit P2. The area at the time was quite busy. His attention was aroused when he saw that the defendant was gazing at the position of the right side pocket of the coat worn by a female, PW1.  A little bit of the smartphone, Exhibit P5, was protruding from the pocket and the defendant was gazing at it. The defendant walked near  to the back of PW1, transferring his garment from his left arm to his right one, carrying it over his right wrist and using it to cover his right hand although PW3 said he could still see some fingers of the right hand protruding. He had moved closer to PW1 and the Defendant, and was about 1 to 2 feet from them. PW3 said he was behind the defendant to his left. He could see clearly as the mall was adequately illuminated by ceiling lights. His view of PW1 and the defendant was not obstructed by anyone or anything at the material time when he observed the defendant insert his hand into PW1’s coat pocket.  He saw the defendant put his right hand into the right pocket of the coat that PW1 was wearing from which the smartphone was slightly protruding. He said that PW1 must have realized what was happening because he saw her turn around – he immediately went forward and disclosed his police identity and presented his warrant card.  He saw PW1 took her mobile phone, Exhibit P5, out from her coat pocket and hold it in her hand.  He subsequently arrested the defendant and brought him back to the police station.  When he initially declared arrest on the defendant, he spoke to him in punti,  but there was no reaction from the defendant, so he used simple English to declare arrest on the defendant after which the defendant nodded his head. He subsequently learned from the defendant that he spoke Spanish, and interviewed the defendant under caution with the assistance of the Spanish interpreter the following day.

8. PW3 was cross-examined as to how long he had been observing the defendant – he said his attention was first drawn to the defendant at 8.12 p.m. on his watch as he had looked at this watch and it was at 8.18 p.m. on his watch that he saw the defendant insert the fingers of his hand into PW1’s coat pocket – the fingers touched the top of the smartphone in the pocket – and the action lasted 2 to 3 seconds. It was put to PW3 by Mr. Cahill that as the defendant was between him and PW1, it would be difficult for him to see what the defendant did with his hands but PW3 disagreed. Mr. Cahill suggested to PW3 that the defendant did not put his hand into PW1’s coat pocket but PW3 disagreed.  It was suggested to PW3 that the defendant’s garment, Exhibit P6, was hung over the sling bag the defendant was carrying, but PW3 disagreed. Mr. Cahill suggested to PW3 that he approached and touched the defendant on his lower back, causing the defendant to turn around. The defendant said something to him and then turned back to the front. PW3 touched the defendant’s back a second time. When the defendant turned around a second time, he saw PW3 talking to PW1. The defendant said to PW3 in English ‘I don’t understand. No English’. PW3 disagreed.

9. The defendant was interviewed under caution on 7 February, 2016. PW3 conducted the interview with the assistance of 2 interpreters – a Chinese-English interpreter, and a English-Spanish interpreter.  It was admitted that this record of interview under caution was made voluntarily by the defendant and it was produced by agreement and marked as Exhibit P3, and its certified English translation Exhibit P3A. The defendant said under caution that he understood what he was charged with and he said he did not take any telephone.  PW3 indicated that he had some questions to ask and reminded the defendant of the caution but the defendant said he was unwilling to answer any questions as he had nothing to say.  He confirmed that the sweater Exhibit P6 was his sweater and he denied putting his hand into the right pocket of PW1’s coat.

10. The defendant elected to give evidence – he said he was 61 years old and single, from Columbia. He had come to Hong Kong in 2010. He said he was at the shopping mall at the material time, and confirmed that the photographs 6, 7 and 8 of Exhibit P2 showed the general area that he was at.  He said he was walking around – there were many people there – he decided to get something to eat.  He was looking at the images of the food as he could not read the descriptions written. There was a man on one side and on the other side there were more people.  He said he was standing in the position of the 2 girls depicted standing on the right side of photo 6. There was a man lining up in front of him and more people on the other side.  While he was looking at the pictures of the food offered, he felt some one touch his lower back, pointing to the rear of his left waist.  He described himself as carrying a dark blue bag across his left shoulder with the bag on his right side, and his sweater, Exhibit P6, was draped over his bag.  He was wearing a blue long sleeved shirt and tan trousers, what he was wearing in Court as he gave his evidence. The person who touched him was PW3 – he turned to PW3 and said in English ‘what happened’.  He turned to the front again and continued to look at the food – PW3 touched him a second time – he turned around and said ‘what happened’.  PW3 started to speak but he said ‘sorry, no English’.  PW3 continued to speak in a language he did not understand – when PW3 realized that he did not understand, PW3 turned to speak to a lady who was also there – he only noticed her when PW3 started to speak to her.  They spoke for 5 to 6 minutes.  He just stood there – he thought about leaving and when he tried to leave, PW3 took out a card with a photograph and said ‘police, police’,  He realized then that PW3 was a police officer – then PW3 made a phone call and another police officer came.  He knew something was going on but was unclear what. He was asked to show the contents of the bag he was carrying and then arrested, handcuffed and taken back to the police station.  He denied he had used Exhibit P6 to cover his right hand as he inserted his fingers into the right pocket of PW1’s coat.  It was not until the next day when he was interviewed under caution with the assistance of the Spanish interpreter that he knew what he was alleged to have done and he denied it. The record of interview was produced by agreement and marked as Exhibit P3 and its certified English translation Exhibit P3A, and it was admitted to have been made voluntarily.

11. The defendant was cross-examined about why he came to Hong Kong in 2010 – he said he had come as a tourist and was issued a recognizance from the Director of Immigration to stay in Hong Kong – it was suggested to him that it was issued to him in 2012 but he said he could not remember the date.  His income was about HK$1,200 a month that he received by way of financial assistance for asylum seekers.  He lived in a room in Shamshuipo for which he had to pay half the rent – about $700-800 a month, after which he had about HK$500 a month to spend.  When he was arrested he had HK$5,438.50 and US$600 on him.  He said that his friends helped him for the HK$5,438.50 and he had always had US$600 with himself.  He also had an Octopus card which had a balance of about HK$100. Although he lived in Shamshuipo, he said he went to the Kwai Chung Plaza that evening ‘just to walk’.  He went there alone by MTR ‘to walk around’.

12. I have carefully considered all the evidence adduced before me as well as the submissions of Counsel.  I have borne in mind at all times that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt.

13. The facts at issue rely upon the credibility of witnesses and the weight to be attached to evidence.  I found the Prosecution witnesses to be honest and credible witnesses, who each gave their evidence in a straightforward manner, without hesitation and without exaggeration.  Their account of events was inherently credible, and I accepted their account of events, in particular the evidence of PW3 as to what he saw and did at the material time.  It was suggested to PW1 by Defence Counsel that she was mistaken when she said that she felt someone had tried to take her mobile phone out of her pocket. She disagreed – she said it was the first time that she had felt as if her mobile telephone was being removed from her coat pocket. She was always focused on her mobile being in her coat pocket – she had been warned previously of the risk of keeping her mobile phone like that in her pocket.  It was suggested to PW3 that he never saw the defendant put his fingers into PW1’s coat pocket and touch the mobile phone in the pocket. PW3 disagreed.

14. I did note the evidence of PW1 in respect of what happened when PW3 approached her and the defendant.  I consider, having heard her, that she was subject to some confusion as to what happened when PW3 approached her and the defendant. I accepted her evidence that her smartphone was kept in the right pocket of her coat, and while she was standing there and eating, waiting for her friend who was in the queue, she felt her smartphone being taken out of her coat pocket. She immediately stepped to her left and turned around and the only person very close to where she had been standing was the defendant. At this point, PW3 approached and  tapped the defendant on his shoulder. She saw that the defendant had his garment Exhibit P6 over his right forearm covering his hand. PW3 also said that the defendant stood close behind PW1 and transferred Exhibit P6 from his left arm to his right wrist and covered his right hand, although he could still see some fingers protruding, and he saw the defendant insert his hand into PW1’s coat pocket and touch her smartphone which was in the right coat pocket.  He saw PW1 react immediately by turning around.  There was clearly sufficient lighting – although it was night time, the shopping mall was well lit, and I accept what PW3 said that there was sufficient lighting and his view was not obstructed at the time. I found that PW1 was somewhat confused as to when PW3 disclosed his police identity – she said the mall was noisy and she could not hear what PW3 said initially as he spoke in a low voice. She initially thought that he and the defendant could be accomplices and only later did he tell her he was a police officer.  PW3 gave evidence that he produced his warrant card when he approached PW1 and the defendant and disclosed his police identity to both PW1 and the defendant.  The defendant too, in his testimony, said that PW3 did take out a card with his photo on it and said ‘police, police’ when he tried to leave and it was then that he realized that PW3 was a police officer. There was a discrepancy between the evidence of PW1 and PW3 in respect of how and when PW3 disclosed his police identity. In my view, this discrepancy did not cause me to doubt the voracity of either PW1 or PW3 as witnesses.  I am satisfied that PW1 was mistaken in this regard, and I accepted the evidence of PW3 as to what happened after he approached PW1 and the defendant.

15. The defendant did not impress me to be a witness of the truth. I found him to be evasive when answering questions and his account of events inherently incredible.  He could not explain why, when he lived in Shamshuipo, and had very limited financial means, he would take the MTR and go all the way to Kwai Chung for ‘a walk’.  In his testimony, he said he turned around on the two occasions when he felt the touch on his lower back and it was PW3 who touched him and he said ‘what happened’. On the second occasion when he said ‘what happened’. PW3 started to talk but he said ‘sorry, no English’.  This differs from what was put to PW3 by Mr. Cahill – it was put to PW3 that he had come forward and touched the defendant on his lower back causing the defendant to turn around. The defendant said something to PW3 and turned to the front again. PW3 touched the defendant on his lower back a second time – and when the defendant turned around the second time, PW3 was talking to PW1, and the defendant said in English ‘I don’t understand. No English’.  The defendant agreed with Mr. Tracey for the Prosecution that when he was arrested he had HK$5,438.50 and US$600 on himself.  When asked about the Hong Kong dollars, the defendant replied ‘because sometimes some friends helped me’. In respect of the US Dollars, he said he had always had the money saved since he came to Hong Kong. He said he received some HK$1,200 in cheques  for financial support as an asylum seeker in Hong Kong.  He lived in a room in Shamshuipo – he said previously, he paid rent of HK$1,000 a month, and then he paid HK$7-800 a month.  He could not tell how much rent exactly he paid each month.  He could not explain why he had to go all the way to Kwai Chung Plaza for a walk.  I did not believe the defendant’s account of events.  That I comment thus is not to misconstrue the burden of proof remaining throughout upon the Prosecution to prove guilt beyond all reasonable doubt but takes account of practical matters pertaining to the credibility of witnesses and the weight to be attached to evidence.

16. I am satisfied beyond all reasonable doubt that the Defendant did attempt to steal one smartphone, Exhibit P5, the property of PW1 Sho Wai-ki.  He is convicted as charged.