HKSAR v. SHIV KUMAR

HCMA 38/2021

[2021] HKCFI 3253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 38 OF 2021

(ON APPEAL FROM WEST KOWLOON MAGISTRATES’ COURTS
CRIMINAL CASE NO 2994 OF 2020)

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J U D G M E N T

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Introduction

1.  The Appellant Shiv Kumar appeared before Deputy Magistrate Ernest Ng Chi Ching (the “Magistrate”)  facing one count of Theft, contrary to section 9 of the Theft Ordinance, Cap 210 [Charge 1] and one of Possession of an Identity Card relating to Another Person, contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap 177[Charge 2].  He pleaded not guilty to both charges.  The Magistrate convicted the Appellant after trial and sentenced him to 3 and 18 months’ imprisonment for Charge 1 and Charge 2 respectively.  The Magistrate ordered the sentences be served concurrently hence the total sentence is 18 months’ imprisonment.  The Appellant appeals against both his conviction and sentence.

2.  The Appellant was represented by counsel in the court below.  On appeal, the Appellant appears in person.

The Prosecution Case

3.  Charge 1 alleged that the Appellant stole the following items belonging to Mui Yuk-wah on 5 September 2020: 

(1)  one personalized Octopus card;

(2)  one Home Return Permit;

(3)  one expired Home Return Permit;

(4)  one pawn ticket (face value $4,500); and

(5)  one pawn ticket (face value $800).

4.  Charge 2 alleged that on the same day, the Appellant possessed an identity of Mui without lawful authority or reasonable excuse.

5.  Four witnesses testified for the Prosecution, namely:

(1)  Mui (PW1);

(2)  PC 19763 (PW2);

(3)  WPC 22202 (PW3); and

(4)  DPC 13621 (PW4).

6.  PW2 and PW3 were the officers who intercepted the Appellant for enquiry on the offence day.  PW4 was the officer who took the record of interview for the Appellant.

7.  PW1 gave evidence that on 5 September 2020, at around 4 am, he was taking a nap at the public accessible area near his workplace in Cheung Sha Wan.  At around 6 am, he woke up because he felt someone touched him.   He then found his wallet in his right back pocket of his trousers was lost.  The pocket was cut opened.  His wallet contained HK$800 cash, his personalized Octopus card (as shown in photo exhibit P2(5)  [AB/50])  (“Mui’s Octopus Card”); his Hong Kong Identity Card (as shown in photo exhibit P2(6)  [AB/51])(“Mui’s HKID Card”); two home return permits (as shown in photo exhibit P2(7-8)  [AB/52-53])  (Mui’s Home Return Permits”), two pawn tickets (as shown in photo exhibit P2(9-10)  [AB/54-55])  (Mui’s Pawn Tickets”); an ATM card and some access cards to the building of his office.  PW1 reported the case.

8.  PW2 gave evidence that at around 11 pm on 5 September 2020, he was on uniform patrol with PW3, also in uniform.  When the two officers reached the junction of Dundas Street and Portland Street, PW2 spotted the Appellant from a distance of around 10 to 15 meters.  The Appellant was walking towards PW2.  When PW2 first saw the Appellant, the latter was walking in normal pace and pushing a bicycle.  When the Appellant saw PW2 at a close distance, the Appellant put his head down and picked up his pace.  PW2 turned around and intercepted the Appellant. 

9.  PW2 asked the Appellant to produce his identification document and conducted body search on him.  PW2 found a black wallet (as shown in photo exhibit P2(1-2)  [AB/46-47])  from the Appellant’s front right trouser pocket.  PW2 found the following items in the transparent compartment of the wallet:

(1)  Mui’s Octopus Card; and

(2)  2 WeChat pay cards in the name of Yeung Chi Keung.

10.  PW2 made enquiries with the Appellant in English about the items found.  The Appellant said he picked those items up at a bus stop on Nathan Road about 10 minutes ago.

11.  PW1 further searched the Appellant and found the following items in the right back pocket of the Appellant’s trousers:

(1)  Mui’s HKID Card;

(2)  Mui’s Home Return Permits; and

(3)  Mui’s Pawn Tickets.

12.  PW2 asked the Appellant in English why he had those items with him.  The Appellant said he picked the items up at a bus stop on Nathan Road about 10 minutes ago and he intended to pass those items to police.  PW2 asked the Appellant why he did not mention the items he found when he walked past PW2 and when he was intercepted.  The Appellant lowered his head and did not reply.  PW2 arrested the Appellant at 11:05 pm.  During the conversation that PW2 had with the Appellant, the appellant communicated in English and used some body language.

13.  PW3’s evidence of the events aligned with that of PW2.  Defence counsel put to PW3 that when the Appellant walked past her, the Appellant looked PW3 in her eyes, spoke to her in broken English with gestures to indicate he had other people’s cards.  PW3 disagreed.  Defence counsel also put to PW3 that the Appellant explained how he found those items when he was first intercepted.  PW3 disagreed.

14.  PW4 was tendered for cross-examination at the request of Defence counsel.  He took a record of interview from the Appellant which the Prosecution did not produce and rely on.  It was put to PW4 that the Appellant had mentioned that he was willing to answer questions put to him, but he felt sick and wanted to go to a methadone clinic before being interviewed. PW4 disagreed.

15.  The Magistrate ruled that the Appellant had a case to answer on both charges.

The defence case

16.  The Appellant elected to give evidence but called no other witness.

17.  The Appellant gave evidence that on the day in question, at around 10 minutes before 11 pm, he was on the way from Sham Shui Po to Mong Kok on his bicycle.  When he arrived at a bus stop in Prince Edward, he got off from his bicycle at a traffic light.  He saw a black plastic bag on the pedestrian walkway and in the bag he found Mui’s HKID Card and other items (the items shown in photo exhibit P2 (3-4, 6-10)).  The Appellant put Mui’s HKID Card in his right front trousers’ pocket and the other items in his own wallet.  The Appellant said he did not put those cards in the compartments of the wallet.  He closed the wallet without zipping it up.  He then put his wallet in the right back pocket of his trousers.  He put these items separately in his 2 pockets because he could not put them all together.  The Appellant said as he could not speak English and Chinese well, it was his plan to find a friend to help him so that he could take the items he picked up to the police. He had no intention to keep those items as his own. 

18.  The Appellant said it was at the junction of Dundas and Portland Street that he saw PW2 and PW3.  He was walking towards the officers and when PW3 and he saw each other, he told her that he had other people’s identity card and pointed to his right front trouser pocket.  PW2 came back and told the Appellant to keep quiet.  When PW2 searched the Appellant and found the items, the Appellant told PW2 that he found those items ten minutes ago.  He also told the police he could take them to the place where he found the items and suggested that the picking up of the items by the Appellant might be captured by a CCTV.  He did not lower his head and walked past the police quickly.  At the police station, although the Appellant was willing to give a statement to the police after going to a methadone clinic, no statement was taken from him after returning from the clinic.

The Magistrate’s Findings

19.  The Magistrate found PW1 to PW4 to be truthful and credible.  He rejected the evidence of the Appellant. 

20.  The Magistrate in paragraphs 20 to 23 of the Statement of Findings & Reasons for Sentence (the “Statement of Findings”)  dealt with the complaint by Defence Counsel that PW2 made no record of the 10 questions he asked of the Appellant.  The Magistrate found that the criticism was unfounded.

21.  In paragraphs 24 to 25 of the Statement of Findings, the Magistrate dealt with the complaint that there were discrepancies in the evidence of PW2 and PW3 concerning whether PW2 made enquiries during the stop and search of the Appellant.  The Magistrate found that there were no discrepancies between the evidence of PW2 and PW3 in that regard.  The Magistrate pointed out that in the evidence in chief of PW3, she clearly stated that when PW2 was conducting investigation from the Appellant, the Appellant provided explanation to PW2.  The Magistrate found PW3’s evidence in that regard is consistent with the evidence of PW2.  The Magistrate also noted that PW3’s role was to assist PW2, in particular in making observation to ensure PW2’s safety during the search.  The fact that PW3 did not mention the enquiry made by PW2 in her police statement did not cause the Magistrate to doubt her Magistrate.  The Magistrate also rejected the submissions that there were discrepancies in the evidence of PW2 and PW3 as to when PW2 found the Appellant suspicious.  The Magistrate found that given that PW2, PW3 and the Appellant were all walking and all the events happened in just a matter of seconds, the difference between the evidence of PW2 and PW3 as to when PW2 first felt suspicious about the Appellant was not significant and it did not cause the Magistrate to doubt their evidence as to what happened at the material time.

22.  The Magistrate rejected the submissions that PW3 contradicted herself as to whether the Appellant gave any explanation before or after the search.  The Magistrate gave his reasons in paragraph 26 of the Statement of Findings.

23.  PW3’s evidence was clear that the Appellant did not mention anything to the effect that he had other people’s properties when he walked past the police and before he was intercepted.  PW3 gave clear evidence that the Appellant only provided explanation to PW2 when PW2 was making enquiry when the items were found upon search, not before.  The Magistrate found that there was no contradiction in PW3’s evidence.

24.  The Magistrate rejected the Appellant’s evidence for the reasons set out in paragraphs 28 (a)-(d)  of the Statement of Findings.

25.  The Magistrate found that if all the items were in a black plastic bag when the Appellant found them, there was no valid reason for him to put the items in the way he did if he intended to return the items to the owner/police.

26.  The Magistrate rejected the Appellant’s explanation that he separated the items because he could not put them together.  The Magistrate found the Appellant’s explanation not credible as the Appellant could simply take the black plastic bag with the items in it.

27.  The Magistrate rejected the Appellant’s evidence as to what he wanted to do upon seeing PW2 and PW3.  Instead of making gesture, it would be much easier for the Appellant to take the items out and hand them over to PW3.

28.  The Magistrate found the Appellant’s evidence concerning PW2 making him to stay quiet when he was making a report to PW3 about the lost items not worthy of belief.

29.  On Charge 1 and Charge 2, the Magistrate made the following findings:

(1)  PW1 lost his wallet which contained the subject matters of Charges 1 and 2 at around 6 am on 5 September 2020.

(2)  Full weight was attached to the Appellant’s admission that he found the items involved before he was stopped and searched by PW2.

(3)  The Appellant had no intention to return the lost items to their owner.

(4)  The Appellant was dishonest and he had the intention to permanently deprive the owner of those items, applying the test in R v Ghosh [1982] QB 1053.

30.  The Magistrate found that the Prosecution had proved all the elements of Charge 1 beyond reasonable and he convicted the Appellant accordingly.

31.  For Charge 2, the Magistrate found that Mui’s HKID Card was found in the right back pocket of the Appellant’s trousers.  He rejected the Appellant’s explanation that he intended to return Mui’s HKID Card to the police.  He further found that the Appellant did not have any lawful authority or reasonable excuse in possessing Mui’s HKID Card.

32.  The Magistrate found that the Prosecution had proved all the elements of Charge 1 beyond reasonable and he convicted the Appellant accordingly.

Antecedent of the Appellant

33.  The Magistrate was told the Appellant was 35 years old and single.  He came to Hong Kong from India in 2015.  Between 2017 and 2019, the Appellant had five convictions, one of which was theft (shoplifting)  and he was fined.

Mitigation and Reasons for Sentence

34.  In mitigation, counsel for the Appellant submitted that the Appellant did not know Mui’s HKID Card was inside the plastic bag and that Charge 2 was incidental, in that it was part of the theft by finding of Charge 1.  Counsel submitted that there was no evidence that the Appellant would ever use it for any illegal purpose. She asked the Magistrate to depart from the usual starting point for the offence in Charge 2.

35.  In sentencing the Appellant, the Magistrate took into consideration the items stolen, the facts of the case and the mitigation. The Magistrate adopted 3 months as the starting point for Charge 1. The Magistrate found that there was no mitigating factor to reduce the sentence.  He sentenced the Appellant to 3 months’ imprisonment for Charge 1.

36.  For Charge 2, the Magistrate followed the case of HKSAR v Li Chang Li [2005] 1 HKLRD 864 where the Court of Appeal held that the sentencing guideline for the offence of Possession of an Identity Card Belonging to Another Person should be 12 months’ imprisonment upon a guilty plea.  The Magistrate rejected Defence counsel’s submission that the Appellant did not know Mui’s HKID Card was in the black plastic bag and Charge 2 was an incidental offence.  He also rejected the submission that the Appellant had no benefit in keeping the identity card.  The Magistrate adopted a starting point of 18 months’ imprisonment and sentenced the Appellant to 18 months’ imprisonment for Charge 2 as there was no mitigating factor to reduce the sentence.

Grounds of Appeal Against Conviction

37.  The Appellant raised three grounds of appeal against conviction in his written submissions dated 11 January 2021:

(1)  The findings of the Magistrate are against the weight of evidence.

(2)  The Prosecution did not put their case to the Appellant that he possessed the identity card without reasonable excuse.  The case ran by the prosecution was that of theft by finding.

(3)  The questions and answers by PW2 were not recorded in writing and shown to the Appellant for his acknowledgement.

The Ground of Appeal Against Sentence

38.  The Appellant complained that the sentence passed on Charge 2 was wrong because the Magistrate did not consider that Charge 2 was incidental to Charge 1 (theft by finding).

THE RESPONDENT’S SUBMISSIONS

Against Conviction

39.  On Ground 1 and Ground 3, the Respondent submits that it is clear from the Magistrate’s Statement of Findings that he had carefully and fully considered all the evidence before he came to his conclusion.  All the keys issues were identified by the Magistrate, with appropriate and adequate findings made in the Statement of Findings.

40.  Ms Parwani for the Respondent submits that the Magistrate had considered and dealt with all the criticisms made of PW2’s evidence by Defence counsel in paragraphs 20-26 of the Statement of Findings, including the criticism concerning whether PW2 recorded the questions and answers between the officer and the Appellant.  Ms Parwani submits that the analysis and findings of the Magistrate cannot be faulted.

41.  Ms Parwani submits that the Magistrate rejected the Appellant’s evidence after a detailed analysis.  The Magistrate was entitled to attach full weight to the Appellant’s admission that he did pick up the items in question before he was stopped by PW2 and PW3.  The Magistrate was entitled to attach no weight to the Appellant’s assertion that he intended to return the items to the owner by giving them to the police.

42.  In respect of Ground 2, Ms Parwani submits that it had all along been the Prosecution case that the Appellant had no reasonable excuse to possess Mui’s HKID Card and the Prosecution did not accept that the Appellant intended to pass the said identity card to the police, as long as the Prosecution had made its position clear to the Appellant, even if the Prosecution did not use the exact wording as alleged by the Appellant, it would not render the conviction unsafe.  At trial, the Appellant ought to have known his version of events was being challenged.

Against Sentence

43.  Ms Parwani submits that the Magistrate had clearly dealt with and considered the plea by Defence counsel Charge 2 was incidental to Charge 1.  It is entirely justified for the Magistrate to follow the sentencing guideline laid down in Li Chang Li. For the reason that Charges 1 and 2 were connected, the Magistrate ordered that the sentences for Charge 1 and Charge 2 be served concurrently.  There is no merit in the sole ground of appeal against sentence.

44.  Ms Parwani submits that both the appeal against conviction and the appeal against sentence should be dismissed.

CONSIDERATION OF THE SUBMISSIONS

AGAINST CONVICTION

Ground 1 and Ground 3

45.  I agree with Ms Parwani that the scope of factual disputes at trial was relatively limited.  It was not in dispute at trial that the Appellant was found in possession of the items, the subject matters of Charge 1 and Charge 2.  It is not in dispute that the Appellant told the police he picked the items up (or using the words of the Appellant, he found them)  about 10 minutes ago. As to what had happened shortly before the Appellant was stopped by PW2 and how the Appellant responded to the PW2’s enquiries, it is clear from the Statement of Findings that the Magistrate had considered all the evidence and submissions made by counsel before he came to his conclusion.  I agree with Ms Parwani that in his detailed analysis, the Magistrate correctly identified the key issues and made appropriate and adequate findings of facts.

46.  On the evidence before the Magistrate, he was entitled to accept the evidence of PW2 and PW3 as to what had happened before the Appellant was stopped and intercepted.  On the evidence before the Magistrate, he was entitled to find what was said by the Appellant and what was not said when questioned by PW2.  In rejecting the Appellant’s evidence, the Magistrate analysed his evidence carefully and gave cogent reasons why he disbelieved the Appellant.  The magistrate was entitled to attach full weight to the Appellant’s admission that he picked up the items before the stop and search by PW2 and PW3.  The Magistrate gave cogent reasons why he attached no weight to the Appellant’s assertion that he intended to return the items to the owner by giving them to the police.  It defies common sense that the Appellant should put the items in two different trouser pockets, instead of using the black plastic bag.

47.  For the compliant that PW2 did not record the questions he asked and the answers given by the Appellant in writing and shown to the Appellant for his acknowledgement, the Magistrate dealt with the complaint in paragraphs 22 and 23 of the Statement of Findings:

“22. Secondly, although the questions and answers were not recorded in English, it is not in dispute that PW2 made a record in Chinese in his police statement. It is noticed that his witness statement recorded only 4 questions and answers in Chinese, while in court, PW2 mentioned that he asked the Defendant about 10 questions during the enquiry. I accept PW2’s explanation that he did not remember the other questions. This is because after he asked the Defendant a question and the Defendant replied in some English and body gesture, PW2 had to put further questions to clarify. Therefore, he did not record down all other questions he put to the Defendant. Given that English is not the mother tongue of both PW2 and the Defendant, it is natural that for PW2 to put further questions to clarify certain meaning of the Defendant’s answers. As such, most of the other questions were only supplemental questions to clarify certain main issues. The fact that PW2 did not remember these supplemental questions and record them in full and in English does not cause me to doubt his evidence that the Defendant did not mention anything to the effect that he had other people’s properties before the search. I reject the Defendant’s submission in that regard.

23. Defence pointed out that the 4 questions and answers made by PW2 during the enquiry were only recorded in Chinese in PW2’s police statement.  They were not translated for the Defendant to confirm the contents.  Defence submitted that it is unfair to rely on that part of PW2’s evidence.  However, it should be noticed that the purpose of PW2’s police statement was for him to record what happened at the material time, I do not find it necessary for him to make a verbatim record in his statement or for the police statement to be translated for the Defendant to confirm the contents.  More importantly, according to PW2, the explanation given by the Defendant when questioned by PW2 during the enquiry was consistent with his defence, i.e. at around 10 minutes before PW2 intercepted and searched him, he picked them up at a bus stop intending to give them to police. …”

48.  I agree with the reasons given by the Magistrate.  There is no merit in Ground 1 and Ground 3. Ground 1 and Ground 3 fail.

49.  In respect of Ground 2, it must be clear to the Appellant that his version of events was being challenged.  When the Appellant was cross-examined, he was cross-examined as to why he did not take the black plastic bag with him.  Under cross-examination, he tried to explain that he put the items in question separately because he could not put all items together. In my judgment, it was clear to the Appellant when he gave evidence in the witness box that his version of events was challenged by the Prosecution.  He knew it was the Prosecution case that he had no intention to pass Mui’s HKID Card to police, it follows that he knew Appellant’s assertion that he had a reasonable excuse for his possession of Mui’s HKID Card was challenged by the Prosecution.  As held in Kaifull Investments Ltd v The Commissioner of Inland Revenue [2002] 1 HKLRD 858, the Brown v Dunn principle does not inflexibly require every point which might be used against the witness to be put to him and that there is no breach of the principle if the witness knew or ought to have known that this version of events was being challenged.  In the present case, it is clear that the Appellant knew his version as for the reason for his possession of Mui’s HLID card was challenged by the Prosecution.

50.  Ground 2 fails.

51.  There is no merit in all the grounds advanced by the Appellant.  I consider the materials before me afresh by way of a re-hearing, the Appellant’s conviction is neither unsafe nor unsatisfactory.  For the reasons given, I dismiss the Appellant’s appeal against conviction for Charges 1 and 2.

Against Sentence

52.  In paragraphs 43 and 48 of the Reasons for Sentence, the Magistrate dealt with Defence counsel’s mitigation that the Appellant did not know Mui’s HKID Card was inside the bag and Charge 2 was incidental to Charge 1:

“43. Defence counsel submitted that when the Defendant found the black plastic bag, he did not know what was inside the plastic bag, and he did not know the identity card of PW1 was inside. Therefore, the Charge 2 is an incidental offence, part of the theft by finding of Charge 1. Defence counsel submitted that there is no issue of an identity card being forged, and no evidence that Defendant would ever use it for an illegal purpose. The Defendant had no benefit in keeping it, which belonged to a Chinese person. As such, Defence counsel invited the Court to deviate from the usual starting point for Charge 2.

…

48. I do not accept the Defence submission that when the Defendant found the black plastic bag, he did not know the identity card of PW1 was inside and Charge 2 is an incidental offence, being part of Charge 1.  It is obvious that the Defendant had sorted the items and consciously put the identity card of PW1 into his right back trousers pocket.  The Defendant must know that he was in possession of an identity card.”

53.  In the judgment, the Magistrate was right to reject the submissions that the Appellant did not know Mui’s HKID Card was in the bag at the time and that Charge 2 was incidental to Charge 1.  There is no basis for the submission that just because the Appellant unlawfully possessed the identity card after the theft by finding, therefore the sentence for his unlawful possession of the identity should not exceed the sentence for theft by finding.   The Magistrate was entirely right to follow the sentence guideline laid down by the Court of Appeal in Li Chang Li.

54.  In applying the totality principle, the Magistrate was right to order that the sentences for Charges 1 and 2 be served concurrently for the reason that the two offences were connected.

55.  There is no merit in the Appellant’s appeal against sentence.  The sentences for Charge 1 and Charge 2 are neither manifestly excessive nor wrong in principle.  The total sentence passed also reflects the overall criminality of Charge 1 and Charge 2.  There is no room for me to interfere with the sentences passed.

56.  For the reasons given, Appellant’s appeal against conviction is also dismissed.