HKSAR v. UVGUNKHUU OTGONKHUU

DCCC 808/2021

[2022] HKDC 688

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 808 OF 2021

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REASONS FOR VERDICT

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BRIEF INTRODUCTION

1.  This is a theft (pick pocket)  case. According to the prosecution’s opening, the offence was committed by a group of 5 persons acting in concert.  D1 and D2 were amongst the group and there were two other unknown males (referred to as A and B)  and one unknown female (referred to as C).  The police found this group acting furtively on the MTR train platform and kept them under observation.  The group left the MTR station and out onto the street.  The offence was eventually carried out at Yen Chow Street.  The entire group followed closely behind a female (the victim)  on the pedestrian crossing.  A pointed at the victim and talked to D2 behind him.  D2 immediately held a scarf in front of his waist, D1 approached and maintained close distance to A, the rest of the group acted as lookout.  Just before the victim reached the other side of the road, A unzipped the victim’s shoulder bag, took out a wallet and handed it over to D1, whilst D2 was using the unfolded scarf to block the view.  The police officers took action and caught D1 and D2, but the rest of the culprits managed to make good their escape. 

2.  D1 and D2 are subsequently charged for together with 3 other persons unknown, stole one wallet, 5 bank cards, one Hong Kong Jockey Club card, one Hong Kong Identity Card, one Home Visit Permit, cash of $160 Hong Kong currency and some papers, property belonging to Wong Chuen-fung. 

3.  D2 pleaded not guilty.  His defence is he did not commit the offence and he was not a party of the joint enterprise.

EVIDENCE

4.  In accordance with section 65C of the Criminal Procedure Ordinance, Cap 221, the prosecution and D2 admitted the following facts:-

(1)  At all material times, D2 was a Form 8 recognizance holder in Hong Kong;

(2)  At around 7:03 pm on 21 May 2021, D2 was present in the vicinity of outside Dragon Centre, No 37K Yen Chow Street, Sham Shui Po, Kowloon, in Hong Kong (“the Location”).

(3)  At around 7:05 pm on the same day, D2 was arrested by PC1771 at or about the Location.

(4)  Upon his arrest, PC1771 seized a light green silk scarf from D2. The said scarf be produced as Exhibit P2.

(5)  At around 7:05 pm on the same day, PC12066 seized the following items (the “Items”)  from a Mongolian male named TURBAT Undrakhbayar (“Turbat”), namely:

(a)  A wallet, which in turn contained all of the following items at the time of seizure.

(b)  An Industrial Bank UnionPay card (#622908 333015 061178).

(c)  A CCB UnionPay card (#4367 4272 0036 2773 046).

(d)  A CCB VISA card (#4367 4501 2939 3118).

(e)  A Bank of China UnionPay card (#621741 3522028952008).

(f)  A Hang Seng Bank UnionPay card (#384 038295 668).

(g)  A Hong Kong Jockey Club card (#308114 8899660578).

(h)  A Hong Kong Identity Card.

(i)  A Home Visit Permit.

(j)  Cash in the amount of $160 in Hong Kong currency.

(k)  Some papers.

(6)  At all material times, the Items constitute properties belonged to Madam Wong Chuen-fung (“Madam Wong”).

(7)  Later in the same evening on 21 May 2021, DPC 22331 took 17 photographs of Madam Wong and the Items at Sham Shui Po Police Station. These photographs be collectively produced as Exhibit P3(1-17).

(8)  Also in the same evening that day, DPC 22331 further took another 11 photographs of Exhibit P2, Turbat and other seized items at Sham Shui Po Police Station. These photographs be collectively produced as Exhibit P4(1-11).

(9)  Between their respective times of seizure or creation and up until their admission into evidence of this case, all of the exhibits identified in the above have not in any way been improperly or illegally tampered with.

5.  The prosecution called 3 witnesses to give evidence.

6.  PW1 Madam Wong Chuen-fung is the victim in this case.  The gist of her evidence is as follows.  At about 7 pm on the day in question, she was with her husband and they took the light controlled pedestrian crossing at Yen Chow Street to go to Dragon Centre.  She was unaware her wallet was stolen until a female plainclothes police officer stopped her inside the centre and asked her if she was carrying a wallet inside her shoulder bag.  Later in the evening inside Sham Shui Po Police Station, she saw her wallet and all the contents, nothing went missing. 

7.  PW2 Police Constable 12066 is the main witness for the prosecution.  At the material time, he was attached to the Task Force MTR Police District.  On the day in question, he and his team consisted of 2 sergeants, SPC 1771, PC 14375, PC 13568 and WPC 14288 were on duty together in plainclothes conducting anti-pickpocket patrol. 

8.  At about 5:50 pm, he was inside Sham Shui Po MTR station.  He was on his own carrying out observation at the train platform area.  He noticed 4 males and 1 female acting furtively.  They approached the passengers on the platform and looked at their handbags from time to time.  So he kept them under observation and made a report to his team members and asked them to join him.  He described the appearance of each of them and referred to them individually as “AP1” for he was later caught holding the stolen wallet, “D2” whom he identified in court, “Male A”, “Male B”, and “Female C”.  During his observation, these 5 persons had conversation amongst themselves.  He perceived Male A was the ringleader for every time Male A spoke, the rest of the group listened to him, and when Male A turned to one direction, the rest followed.  The entire group started to leave the platform area shortly.  SPC 1771 was in the vicinity and joined him.  They both followed the group up to the concourse and out of the MTR station. 

9.  For the next hour, the group walked around in Sham Shui Po area covering Cheung Sha Wan Road, Apliu Street, Yen Chow Street, and Fuk Wa Street.  He kept tailing the group from behind and maintained a distance of about 10-15 meters apart and never lost sight of them. There were 7-8 occasions the group approached and looked at the passers-by’s handbags. 

10.  At about 7:00 pm, the group got to Yen Chow Street towards the direction of Nam Chong MTR station and stopped outside a 7-11 convenient store to talk.  Male A was the one talking whilst the rest of the group were standing in a circle listening.  He could not hear what was said because of the distance apart and noise from vehicles and people.  The talk last for about a minute. 

11.  When the pedestrian crossing light on Yen Chow Street changed to green, pedestrians started crossing the road.  All of a sudden, Male A started crossing the road in a quick pace following a female ie PW1.  PW1 was supporting a male with her right hand who appeared to have difficulties walking for the 2 were walking in a very slow pace.  At that time he was about 10 meters away on the pavement of Yu Chau Street opposite to the 7-11 convenient store observing.  Male A was following PW1 from behind, used his hand to point at PW1 and turned around to say something to D2 briefly. He is shown a street map of the material location to mark the respective locations.  He used an orange pen to mark the location of the pedestrian crossing, a red pen to mark the location of the 7-11 convenient store, and a blue pen to mark the location where he was observing.  This map is produced as exhibit P5.  He described the lighting condition at that area was sufficient and he had un-obstructed view of Male A and D2 although there were other pedestrians crossing the road. 

12.  After Male A spoke to D2, D2 followed Male A quickly about 1/2 meter behind with a green scarf in his right hand.  He did not see when or from where D2 took that scarf out for his main attention was on Male A whom he believed was the ring leader.  He reckoned it was the same scarf he saw Female C was holding before.  The rest of the group also clustered behind PW1 as she was crossing the road towards Dragon Centre.  He described the different positions taken up by each member of the group.  For clarity, he was asked to draw a sketch to show the material area, the formation of the group when following PW1 on the pedestrian crossing, and the route he took from the spot he carried his observation to the group.  The sketch is produced as exhibit P6.  He saw Male B and Female C at the position he marked on P6 were looking left and right as if they were acting as lookout.  He got to the position as marked on P6 about a meter behind Male A. 

13.  Before PW1 and her husband reached the pavement outside Dragon Centre, he saw Male A used his right hand to open the zip of PW1’s shoulder bag from left to right, then took out a wallet.  When Male A was committing the stealing, D2 used both hands to open up the scarf and held it up to his waist level, so that the scarf was behind Male A.  After Male A took out a wallet, he handed it over to D1 on his right side.  D1 took over the wallet with his left hand and changed it to his right hand.  By then PW1 and her husband had got onto the pavement, turned left and went into Dragon Centre.  He reported what he saw to his teammates to take action.  For himself, after reporting to his teammates, he immediately held D1’s hand which was still holding the wallet from behind and revealed his police identity.  D1 put up an intensive struggle and was eventually subdued when ASGT 20068 came to assist.  Subsequently he knew D2 was arrested by SPC 1771.  Apart from seeing D2 opened up the scarf, he did not see him doing anything else.

UNDER CROSS-EXAMINATION

14.  He agrees in his witness statement he made no mention about Female C was in possession of a scarf when he noticed her at MTR platform.  He agrees it is an important aspect of the case because the scarf was later on used to conceal the act of stealing. 

15.  Of the alleged 7-8 occasions the group approached the passers-by in the street and looked at their handbags, PW2 is unable to describe any of the targets whether by gender, age, built or color of hair.  He said he cannot recall because no offence was committed on those targets and so he did not pay particular attention to them. 

16.  He disagrees with defence counsel’s suggestion that D2 could use his body and not the scarf to conceal Male A’s action.  He also disagrees it would be more easy for other people to raise suspicion of D2 by holding the scarf in the manner he described. 

17.  It is suggested by defence counsel that after the group left the MTR station, they all went to a shop at the basement of Golden Computer Arcade.  PW2 answered he cannot remember. 

18.  It is suggested by defence counsel that the group stayed there for 30-40 minutes for D2 needed to have his mobile phone screen protector replaced and they left the shop at about 6:50 pm.  PW2 answered he does not have any impression for it was a year ago.  He only remembered the group walked around in the nearby vicinity.

19.  It is suggested that D2 bought a scarf ie P2 from a street stall.  PW2 answered he did not see that. 

20.  It is suggested that when the group was crossing the road at Yen Chow Street, D1 and D2 were 3 meters apart with 2-3 passers-by between them, whereas the rest of the group were in front of D1. PW2 disagrees. 

21.  It is suggested that a man suddenly dashed at D2.  PW2 disagrees. 

22.  It is suggested that D2 was subdued by that man.  PW2 answered that happened after the pickpocketing occurred, and D2 was arrested.

23.  It is suggested that the scarf was wrapped around D2’s left arm and he never opened up the scarf and he was not involved in any criminal act.  PW2 disagrees. 

24.  Under re-examination, when he was asked to explain why did he not mention in his witness statement about Female C had a green scarf in her possession, he explained during his observation at the MTR platform, he tried to remember what the suspects were wearing and there were 5 of them, he only noticed Female C held a scarf with her hand and very quickly she put it away.  After the group left the MTR station up to the commission of the offence, he had not seen the scarf re-appeared and he did not expect it was the scarf used to commit the offence, these are the reasons why he forgot to mention it in his witness statement. 

25.  Prosecuting counsel asked him to clarify, according to his demonstration in court, D2 opened up 1/8 of the scarf to conceal Male A’s act of stealing, however, in his evidence in chief he testified the scarf was fully opened up.  He disagrees he had said so in his evidence in chief. 

26.  Prosecuting counsel also asked him to explain why he would have no impression as to whether or not D2 and the rest of the group had stayed inside a shop at the Golden Computer Centre for 30-40 minutes.  His explanation is the group had done many things and gone to many places.  He had impression at the time but after one year has lapsed and also because the group did not commit any crime at that time, so he made no effort to remember what was not connected to the crime eventually committed. 

27.  PW3 SPC 1771 is the arresting officer of D2.  He gave the following account leading to the arrest of D2.  At around 5:50 pm.  he was inside Sham Shui Po MTR Station patrolling.  PW2 made a report to the team members that he found 4 males and 1 female acting furtively and should pay attention to them.  After he met up with PW2, PW2 pointed out the suspects to him.  He was able to see the suspects including D2.  All the suspects left the MTR station and got out to Fuk Wa Street/Kwai Lin Street.  He and PW2 continued following the suspects but PW2 was closer to the suspects.  The suspects walked around in Sham Shui Po area and walked up to crowded areas looking at passers-by mostly female’s handbag at close distance.  At 7:03 pm, the suspects got to the intersection of Yen Chow Street and Yu Chau Street and crossed Yen Chow Street by the pedestrian crossing towards Dragon Centre.  He saw the suspects were following a male and a female.  When crossing the road, D2 used both hands to hold up an opened up green scarf about 2 feet wide up to his waist level in front of himself for about 10 seconds.  He felt such action was to prevent other people seeing something but as to what he did not know at the time.  At that time he was approximately 10 meters away from the suspects. The lighting at that area was sufficient for him to see clearly, Then PW2 reported to the team that one of the suspects stole a wallet and they could take action to intercept the suspects.  He went up and intercepted D2 on the pavement just outside Dragon Centre with the help of PC 13568.  He revealed his identity by showing D2 his warrant card, and declared arrest.  At that time D2 was still holding a green scarf.  D2 did not seem to understand what he said and tried to run away by putting up a struggle.  He had to be subdued.  He saw another male suspect was intercepted by PW2, whereas the other suspects managed to escape. 

28.  Under cross-examination, he said he and PW2 followed the suspects outside the MTR station but not together.  He kept a distance about 10 meters behind PW2 in case he had to intercept.  It was their tacit agreement.  PW2 informed him when he saw the suspects approached the passers-by to look at their handbag and there were about 7 times.  He cannot remember where it was or when it happened for the first time.  The suspects were approximately 12-13 meters away from him and were within his sight.  When the suspects got to Yen Chow Street, they stopped waiting to cross the road.  When he saw D2 held up the green scarf, the suspects had walked out from the pavement onto the pedestrian crossing for 3-4 steps.  He confirmed that happened very soon after the suspects walked out from the pavement.  At defence counsel’s request, he drew a sketch of the scene and marked there his position and D2’s when he saw D2 holding up an opened scarf.  This sketch is produced and marked P7.  He did not know where PW2 was at that time.  His view of the other suspects was obstructed by other pedestrians and there were about 20 pedestrians crossing the road at the same time but his view of D2 was unobstructed.  He confirmed of the formation of the suspects he drew on P7, D2 was on the right side, next to him was another suspect, and the other 3 suspects were in front.  This formation maintained until all the suspects got to the other side of the road.  He disagrees with defence counsel that D2 just wrapped the green scarf on his left forearm without opening it up when crossing the road.  He agrees Sham Shui Po Police Station was just next to Dragon Centre and at normal times, many police officers would come in and out of the police station. 

29.  He confirms his witness statement was compiled at 2:00 am on 22 May 2021 inside Sham Shui Po Police Station when his memory was fresh and independently without assistance from his colleagues. The description of the suspects in paragraph 4 of his witness statement was based on his own memories.  He disagrees D1 and D2 were 3 meters apart when crossing the road, the other suspects were ahead of D1, or there were 2-3 pedestrians crossing the road at the same time.  He also disagrees a man dashed at D2 after D2 had crossed the road and subdued D2 on the pavement.  He disagrees D2 did not participate in any wrong doing up to that moment or not a party to those 4 suspects. 

30.  D2 has no half way submission.  Based on the evidence adduced by the prosecution, I ruled there is a case for D2 to answer.

31.  D2 elected not to give evidence and did not call defence witness.

FINAL SUBMISSION

32.  Defence counsel submitted: -

(a)  the discrepancy between PW2 and PW3’s evidence is so large that it cannot be reconciled;

(b)  the location where the offence was committed was so close to Sham Shui Po Police Station, with many police officers in the vicinity, it would be irrational and abnormal for D2 to commit the offence as described by PW2 and PW3 for such act as alleged would make him a target when he could simply use his body to conceal the act of Male A;

(c)  In comparison of the witness statements of PW2 and PW3, the wording and sequence used to describe the appearances and clothing of the 5 suspects are so identical and similar that it is obvious that one did make reference to or copy the contents from the other. Their evidence by insisted that they made their witness statement independently cannot be true. It is submitted that by not telling the truth, the credibility and reliability of these 2 police officers is seriously impeached.

(d)  PW1 testified that he saw Female C was holding a green scarf when she was at the platform with the suspects including D2. The same or similar scarf was later used by D2 to conceal the act of stealing. It is submitted that the purpose of PW2 mentioning it was to make his allegation against D2 more persuasive that D2 was a party of the pickpocket gang. It is important to the case and why PW2 would have forgotten to mention that in his witness statement. Likewise, PW3 also did not mention Female C had a light green scarf both in his witness statement and in his evidence. It is submitted that PW2’s evidence about D2 holding up P2 to conceal the stealing act is not the truth.

DISCUSSION

33.  The prosecution case against D2 is: -

(a)  he was a party to the joint enterprise. He together with D1 and 3 other unknown persons were acting in concert to steal from passers-by and did steal a wallet from a passer-by;

(b)  they did commit the offence and a wallet was stolen from a passer-by. Each of them had a role to play in committing the theft offence;

(c)  D2’s role was to conceal the act of stealing by holding up a scarf behind Male A.

34.  The issue of this trial is whether D2 was acting in concert with the group.

35.  I bear in mind the burden of proof is on the prosecution, and the standard of proof has to be beyond all reasonable doubt.

36.  UN-DISPUTED EVIDENCE

(a)  D2 was amongst the group gathered at the MTR station.

(b)  The entire group left the MTR station and wandered in the streets of Sham Shui Po area for an hour;

(c)  D2 was amongst the group following closely behind a couple crossing the road.

(d)  The offence of pickpocketing did carry out on the light-controlled pedestrian crossing.

(e)  D2 was amongst the group when the crime was carried out.

(f)  Male A stole a wallet from the victim’s shoulder bag and handed it over to D1. PW1 by then was close to the group took action at once and caught D1 who was still holding the wallet. PW2 caught D2 on the pavement outside Dragon Centre. D2 was still holding a scarf P2 in his hand. The rest of the group fled and made good their escape.

37.  DISPUTED EVIDENCE

(a)  According to the defence case, D2 met D1 on the MTR platform. The rest of the group was D1’s friend. They had a talk on the platform and then left the MTR station together. They did not approach the passengers on the platform, at least D2 himself did not, and looked at the passengers’ handbags.

(b)  It is categorically denied that the female in the group was holding or wearing a light green scarf when she was inside the MTR station.

(c)  After the group left the MTR station, they went to a shop at the Golden Computer Centre together for D2’s cellphone needed to be fixed. They stayed in the shop for 30-40 minutes.

(d)  Although it is not in dispute that members in his group did commit the offence on PW1, it is categorically denied that D2 had held up a scarf to conceal the act of pickpocketing. According to defence case, the scarf ie P2 was purchased by D2 from a street hawker when the group was wandering in Sham Shui Po, not from the female in the group as alleged.

FINAL SUBMISSION

38.  Defence counsel invites the court to note the discrepancies in PW2 and PW3’ evidence as he set out in paragraphs 7, 8 and 11 in his final submission and to compare exhibits P6 and P7.  Defence counsel submits the discrepancies are “so large that it cannot be compromised”.

39.  I note the following discrepancies: -

(a)  The spot where the pickpocketing took place is obviously not the same.

(b)  According to PW2’s version, the act of pickpocketing took place on the other side of the pedestrian crossing near the pavement outside Dragon Centre;

(c)  According to PW3’s version, the act of pickpocketing took place just after the group took 3-4 steps onto the pedestrian crossing;

(d)  At the material time, whether there were other pedestrians using the pedestrian crossing and blocked the observation of the 2 police officers

(i)  According to PW2’s version, PW1 and her husband were walking very slowly, and for that reason, most of the pedestrians had walked past them. So his observation of the group was unobstructed.

(ii)  According to PW3’s version, there were about 20 pedestrians using the pedestrian crossing to cross the road at the same time and for that reason, his observation of the group was obstructed by the pedestrians but he could still see D2 holding a green color scarf and held it up to his waist level.

40.  Defence also challenges the evidence of PW2 and PW3 as both claimed that the witness statement they compiled for this case was made independently without making reference to or copy the contents of the other.  In this connection, Defence counsel invites the court to compare the witness statement made by these 2 witnesses ie MFI-1 and MFI-2, and will note the words used to describe the appearance and clothing of the 5 suspects and the sequence are almost identical that would not be independent. 

41.  According to PW2’s evidence, he saw Female C was holding or wearing a green scarf on the train platform inside the MTR station and later when the crime of pickpocketing was carrying out, D2 was also holding a similar green scarf to conceal the crime being seen.  Defence counsel submits the scarf is so important to the case against D2 for it can prove he was a party to the pickpocket gang, so much so that it is impossible for PW2 to forget mentioning that in his witness statement.  Defence counsel also submits, incidentally, PW3 also did not mention Female C had a green scarf inside the MTR station in his witness statement. 

ANALYSIS OF EVIDENCE

42.  I considered PW2’s evidence carefully. At the material time his team was conducting anti-pickpocket operation and he was carrying his duty on the MTR platform.  I believe he did see the group acting furtively on the MTR platform or else he would not have followed the group out of the MTR station onto the street and kept them under observation for an hour. 

43.  Under cross-examination, when defence counsel put to PW2 that after leaving Sham Shui Po MTR Station, the group went to a shop at the basement of Golden Computer Centre and stayed there for some 30 to 40 minutes, apparently such question was asked to challenge the allegation that the group was wandering in Sham Shui Po district looking for targets to pickpocket, PW2 said he cannot recall if they did or not for it has been a lapse of one year.  The answer to this question should be either “yes” or “no”.  One year is not a long lapse of time.  For a professional trained police officer, it should not be a matter he cannot recall, especially when the visit to the shop was 30-40 minutes long. 

44.  Also, when he was asked by defence if he could describe any of the passengers on the train platform or passers-by on the street allegedly preyed on by the group, he said he could not.  His explanation is he did not make a mental note because no crime was committed yet. Although he is a trained police officer and he had been with the Task Force MTR Police District for a year up to the date of this incident, I do find the explanation he gave is reasonable. 

45.  I share defence counsel’s view that the purpose of PW2 mentioning in his evidence about noticing Female C was holding or wearing a light green scarf when he was observing the group at the train platform was intended, more likely than not, to persuade the court that D2 was a party to the pickpocket gang for he used a similar scarf to conceal the crime. Defence counsel submits, for such an important piece of evidence, it is impossible for PW2 not to mention in his witness statement.  I read PW2’s witness statement MFI-1, It was taken by himself at 2 am  on 22 May 2021 (the following morning after the incident).  In the statement under paragraph 3, he gave a full and very detail description of each suspect as to their age, height, body built, hair style and colour, clothing, footwear, the colour of their bag and of the face mask.  His description of Female C is “around 35-40 years old, 1.6 metres tall, of fat built, with long black hair, wearing a light colour T shirt, light colour shorts, silvery shoes, a black cross-body bag and a white surgical mask.” As defence counsel pointed out, PW2 made no mention that Female C ever had a light green scarf on the train platform or at any time until he was giving evidence.  Same applies to PW3 in his witness statement MFI-2 and he did not even mention it in his evidence.  It seems rather odd to me how PW2 was able to remember out of the blue Female C had a green scarf in her possession a year later when he made no mention of it in his witness statement. 

46.  Defence counsel comments PW2 and PW3 are not honest for they would not admit sharing the information about the description of the 5 suspects with each other for reference and incorporated in their own witness statement, but insisted they made their own witness statement independently.  Defence counsel invites the court to compare the description of the 5 suspects stated in PW2 and PW3’s witness statement marked “MFI-1” and “MFI-2” respectively.  After comparing these 2 witness statements, I agree with defence counsel’s view.  I do find the words used in the description and the sequence of setting out the suspects (except the last two)  by these 2 witnesses are so strikingly similar that could not be made independently.  If a witness gives evidence under oath and does not tell the truth, his credibility and reliability is tainted. 

47.  PW2 and PW3 gave evidence where the group was when they saw D2 holding up a scarf.  PW2 said the group was on the pedestrian crossing near the other side of the road as he illustrated in his sketch P6.  PW3 said the group had just stepped out onto the pedestrian crossing for 3-4 steps as he illustrated in his sketch P7.  Their evidence is very different from each other and could not possibly reconciled.   

48.  Having taken all the evidence and defence Counsel’s submission into consideration, despite all the criticisms against PW2 especially and my findings as stated, the evidence is so strong that the only reasonable and irresistible inference to be drawn is D2 was a member of the pickpocket gang.  He was amongst the group all along and was amongst the group clustering closely behind the victim when the pickpocketing was being carried out.  It is not in dispute that when D2 was intercepted at the scene the scarf P2 was still in his hand.  Such evidence supports the allegation that he used the scarf, held it up behind the actual thief to conceal the offence being seen.  I have no doubt that by his presence amongst the group and held up a scarf behind the actual thief when the latter was committing the offence was acting in concert with his group. 

49.  I do not accept defence submission that it would be irrational and abnormal for D2 to hold up an opened up scarf to assist the actual thief at the location so close to Sham Shui Po Police Station as there would have many police officers in the vicinity as that would make him an easy target to be seen.  Firstly, the crime did take place not far from the police station.  Secondly, there is no evidence before the court that the group or D2 was aware there was a police station nearby and it does not necessary follow there would be many police officers in the vicinity.

50.  Defence also submits it was unnecessary for D2 to hold up a scarf to assist the actual thief in committing the crime for his body was enough to block the view of others and that would be more efficient and safe for D2.

51.  On one hand, I do agree with defence counsel’s view.  According to PW2’s evidence and P6 ie the sketch he drew, the entire group clustered closely behind PW1 and, there were 5 of them, their bodies should be enough to conceal the act of stealing from the view of the others.  There was no need for D2 to hold up a scarf to achieve that result.  I also accept P2 is a light green colour scarf, the colour itself is rather eye-catching and the alleged action of D2 holding it up in the street or on the pedestrian crossing is equally eye-catching.  On the other hand, I cannot rule out someone would do something irrational like what D2 did. 

CONCLUSION

52.  Based on the above analysis and findings, I found the prosecution case against D2 is proved beyond all reasonable doubt.

VERDICT

53.  D2 is found guilty.