HKSAR v. KHALED HUSSIEN KHALED ALBAWAN EH

HCMA 616/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 616 OF 2015

(ON APPEAL FROM KCCC 1251 OF 2015)

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REASONS OF JUDGMENT

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INTRODUCTION

1.  The appellant was charged with the following offences:

(i)   1^st charge: Going equipped for stealing, contrary to section 27(1) of the Theft Ordinance, Cap 210, Laws of Hong Kong.

(ii)   2^nd charge: Theft, contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong.

(iii)   3^rd charge: Criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap 200, Laws of Hong Kong.

(iv)   4^th charge: Possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177, Laws of Hong Kong.

(v)   5^th charge : Theft, contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong.

2.  The third charge was withdrawn.  The appellant pleaded not guilty and was convicted of the all the remaining charges ie charges 1, 2, 4 and 5 after trial by Ms Veronica S H Heung (“the Magistrate”).

3.  On the 27 August 2015, the appellant was sentenced as follows:

(i) 1^st charge : 8 months imprisonment

(ii) 2^nd charge : 3 months imprisonment

(iii) 3^rd charge : [withdrawn]

(iv) 4^th charge : 3 months imprisonment

(v) 5^th charge : 3 months imprisonment

The sentence of charges 1, 2, 4 and 5 are to run concurrently.  The total sentence is 8 months’ imprisonment.

4.  The appellant appealed against his conviction.

5.  After hearing, the appeal was dismissed forthwith.  I have indicated that I shall give reasons of my judgment in due course which I now do.

PROSECUTION CASE

6.  The prosecution case consists of two police officers and is well summarized by the learned Magistrate in the Statement of Findings (“Statement”) at paras 10-21:

“ The Prosecution case

10. It was the Prosecution case that at about 0340 hrs on 8 August 2015, PW1, PW2 and four others team-members of the police were on duty in plainclothes carrying out their patrol duty in Tsim Sha Tsui area

11. On Observatory Road, PW1 & 2 who were patrolling as a pair saw the Defendant walk in and out of the entry way leading to the rear lane of No 5 Observatory Road, in a furtive manner. They therefore continued observing him.

12. The Defendant was then seen to walk across the Observatory Road and go into the rear lane of No 8 Observatory Road. Upon entering the rear lane, the Defendant was seen tolook back once, use his right hand to touch the wooden hoarding board on his left and shine a torch illuminating white light when he was going further inside alley.

13. Upon seeing this, PW1 and PW2 informed their team-members of their observation.

14. There were altogether 6 entry ways in the vicinity on the four main roads which could lead to the rear lane of No 8 Observatory Road. A sketch showing the material location (Exh. P14 & 14a) was admitted into evidence under section 65C of the Criminal Procedure Ordinance, Cap. 221. Two entry ways on Observatory Road, one on Kimberly Road, two on Chatham Court and one on Chatham Road South.

15. Each of the entry ways was then guarded by a police officer of PW1’s team.

16. PW1 was guarding the entry way at No 111-113 Chatham Road South where he saw some torch light shining inside the rear lane intermittently. About 20 minutes later the Defendant came out from this entry way. PW1 immediately notified PW2 and other team-members who then came to assist him one after the other. PW2 came first and joined PW1 to stop the Defendant outside No 119A Chatham Road South.

17. A search was conducted on the Defendant by PW1. In his right hand, PW1 found a torch in the form of a lighter which could illuminate white light (Exh P11). In the sling bag that the Defendant was carrying, PW2 found the articles set out in Charge 1, namely one screwdriver, one pair of pliers with green handles, one pair of pliers with red handles, one spanner, one pair of scissors, one pair of black plastic gloves, one face mask and one bag of transparent plastic gloves.

18. Upon further search, PW1 found the items set out in Amended Charge 2 and Additional Charges 4 and 5, namely, a Hong Kong Identity Card, a China Re-entry Card and a credit card, in the Defendant’s wallet (Exh P1) which was put inside his right rear trouser pocket. The said three cards did not belong to the Defendant. Inside the wallet, PW1 found also a mirror (Exh P20) carried in a holder (Exh P 21)

19. PW1 declared arrest on the Defendant for various offences.

20. It was admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221 (Exh P17) that the said 3 cards found in the wallet from the defendant belonged to a madam Tang and her daughter a madam Li. They did not know the Defendant and they had reported the loss of the 3 cards on 4 August 2015.

21. The defence counsel in cross-examination put to PW1 and PW2 that the spanner (Exh P6) and a pair of pliers with red handle (Exh P5a) were not found in the Defendant’s sling bag; the holder (Exh P21) holding the three cards in question and the mirror (Exh P20) was held in the Defendant’s hand; and the torch (Exh P11) was carried in the Defendant’s sling bag not in his hand.  PW1 and PW2 categorically disagreed.  PW1 and PW2 further disagreed, when it was put to them, that they knew the Defendant prior to the present incident.”

APPELLANT’S CASE IN TRIAL (IN SUMMARY)

7.  The appellant’s elected to give evidence but he called no other witness. His case is also well summarized by the Magistrate in the Statement at paras 22-25:

“ The Defence Case

22. It was the Defence case that at the material time, after drinking with his friends in a nearby convenience store and borrowing some tools from his friend’s home, the Defendant was on his way home on foot. In the vicinity outside No 5 Observatory Road, the Defendant saw PW1 and PW2 whom he recognized as being police officers. The Defendant said that as he knew that he did not then have with him his proof of identity, namely the Form 8 Recognizance, he did not want to get into trouble with the police. He therefore tried to avoid PW1 and PW2 by getting into the rear lanes from the entry way at No 8 Observatory Road.

23. The Defendant said that within 2 minutes time, he came out of the rear lanes from the entry way at No 111-113 Chatham Road South. He stood on the side of the pavement near No. 119A Chatham Road South next to a government rubbish bin, which was orange in colour as shown in the photo Exh P13(21), to smoke. He lit a cigarette and looked around to see if the police officers were following him. At this juncture, he saw a cardholder (Exh. P21) on the top of the rubbish bin. He picked it up and held it in his hand. He did not pay attention to the content of it at all. In less than one minute after he had picked it up, PW1, PW2 and their team‑members came and approached him.

24. The Defendant said that he was then assaulted by the police officers and eventually brought back to the police station.

25.   The Defendant said that although he had not yet had a chance to check what was inside the cardholder (Exh 21), as soon as he picked it up, he had already formed the intention and decision to take it to Hunghom Police Station.  The Defendant further claimed that the pair of pliers with red handles (Exh 5a) and the spanner (Exh 6) were not his and were not found inside his sling bag as PW1 claimed.  He had never seen those two items until in court at trial.  The Defendant further said that the torch in the form of a lighter (Exh P11) was found in his sling bag and not in his hand when he was stopped and it was not broken as it was when shown in court and in the photo (Exh P12(11)), at the time when it was seized from his sling bag at the scene.  He said that it remained intact and he used it to light the cigarette at the time.  He had not used the torch function of it that night at all.”

THE MAGISTRATE’S REASONS FOR CONVICTION (AND ANALYSIS OF EVIDENCE)

8.  The Magistrate’s reasons for conviction (and analysis of evidence) can be found in the Statement at paras 26 to 43:

“ Evaluations & Findings

26. I carefully considered all the evidence and submissions. I had the benefit of observing the demeanor of the witnesses as they gave evidence. In reaching my verdict I had reminded myself of the burden and standard of proof and that the burden was on the Prosecution throughout. I reminded myself that when drawing inferences from the evidence, the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

27. I had also carefully considered the evidence of PW1 and PW2 and all the various criticisms made of the evidence of them in the defence submission. I was impressed with the evidence of PW1 and PW2. I found their evidence to be clear, cogent and compelling. Their evidence remained unshaken under cross-examination. Their evidence was consistent with each other on material aspects. I found that I was satisfied so I was sure they were telling the truth. Nothing said in the defence caused me to doubt this finding. I believed them.

28. In his submission the defence counsel referred to a number of discrepancies within PWs’ evidence. I do not propose to go through each and every one, save to say I had considered them and that taken individually and collectively they did not in themselves cause me to doubt the evidence of PW1 and PW2. They went essentially to matters of detail such as during the observation whether or not PW1 had informed PW2 that he saw some torch light illuminated inside the rear lane of No111-113 Chatham Road South, and if yes, how many times he had informed PW2. I considered that they were entirely consistent in relation to the course of events. Both of them said that all team-members were having their mobile phone on and the telephones were in conference mode throughout the observation period. So each of the team-members was kept informed of PW1’s observation on the telephone. I found that their credibility was in no way shaken by these minor inconsistencies.

29. Also the evidence showed that there were no grudges between the Defendant and PW1 and PW2. The court could not see why PW1 and PW2 would make up the story that the Defendant had been acting in a furtive manner as they described and about what and from where upon the Defendant the exhibits were seized.

30. I had no doubt the evidence of PW1and PW2 was honest, reliable and accurate. I believed them.

31. I did not believe the Defendant. He was neither honest nor reliable. I had no doubt his account generally and as to the events in the incident in particular was not to be believed.

32. I found the Defendant’s assertion as to how he came to be possessed of the tools and the said three cards in questions and what he intended to do with them was inherently improbable and I did not believe it.

33. I had carefully examined the holder (Exh P21), the mirror (Exh P20) and the credit card (Exh P2) and the standard size and volume of a Hong Kong Identity Card and a China Re-entry Card. The holder was very small, if not too small, and extremely tight, if not too tight, for holding the mirror and the said three cards all together. Even if all four pieces of items could be put together inside the holder without damaging it, by looking at the holder which was not transparent and was of very ordinary plastic material, one could hardly tell what was inside. One could never know by just holding it in his hand what and if anything of value was in it. How could the Defendant have been able to instantly form the intention that he should take it to the police station without first checking the content of it? Also, the holder was opaque and without checking its contents, how could the Defendant have been able to say in his evidence “the cards in the holder seem to belong to somebody” when at the same time he emphasized “but I did not take them out (to have a look)”?

34. I noted that the Defendant’s claim in his evidence that the torch (Exh 11) was not in a broken condition as shown in court and in the photograph Exh P12(11) was never put to PW1 or PW2.

35. I was aware that the Defendant’s guilt did not follow from my disbelieving his evidence and that it remained for the Prosecution to prove each and every element of the charges beyond reasonable doubt. Of course the burden was still on the Prosecution to prove the elements of the offence beyond a reasonable doubt. The Defendant had nothing to prove.

36. In his submissions the defence counsel suggested a number of improbabilities in PW1’s evidence. I do not propose to go through each and every one, save to say I had considered them and that taken individually and collectively they did not in themselves cause me to doubt the evidence of PW1 and PW2. They went essentially to PW1’s personal judgment of the fact and line of thinking. I considered the explanations and justifications he gave in his evidence were reasonable and I accepted them. I accepted that at the time when he saw the Defendant go into the rear lane of No 8 Observatory Road, he did not follow the Defendant because it was very dark inside and he had no idea what the Defendant or his party, if any, would do to him in the rear lane. Worrying about his own safety and seeing that the Defendant had not committed any crime yet, he did not go into the rear lane to follow or catch the Defendant.

37. I was sure that PW1 and PW2 did not make up or exaggerate the incident. There did not appear to be any reason for them to do so. I was sure that PW1 and PW2 were honest and reliable witnesses telling the whole truth in court. They had tried their best to give an accurate account of what had happened. I believed them.

38. Based on the evidence accepted, I found the following facts had been proved:

38.1 At the material time, the Defendant went into the rear lane from the entry way at No 8 Observatory Road. In the rear lane, a white light was emitted from an object the defendant carried in his hand;

38.2 The Defendant remained inside the rear lanes in the vicinity for about 20 minutes;

38.3 During this time, no one was seen to enter or exit from the rear lanes from either of those six entry/exit ways which could lead to the rear lane of No 8 Observatory Road where the Defendant was;

38.4 Some white light was emitted intermittently inside the rear lanes which could be seen from the entry way of the rear lane of No 111-113 Chatham Road South shortly before the Defendant came out of it;

38.5 The Defendant was holding a torch in the form of a (broken) lighter (Exh P11) in his hand which could emit the same white light as tested at the scene and demonstrated in court by PW1.

39. The only irresistible inference could be drawn was that the white light emitted inside the rear lanes which was seen from the entry way of the rear lane of No 111-113 Chatham Road South was emitted from the torch in the form of a (broken) lighter (Exh P11) held in the Defendant’s hand.

40. Based on the evidence accepted, I further found the following facts had been proved:

40.1 In the small hours on the day in question i.e. at 3:40am on 8 April 2015, PW1 and PW2 saw the Defendant in the vicinity of the rear lane of No 5 Observatory Road;

40.2 The Defendant was acting in a furtive manner as PW1 and PW2 described. The Defendant walked in and out of the rear lane of No 5 Observatory Road and looked around;

40.3 The Defendant then went across the road into the rear lane of No 8 Observatory Road and looked back from time to time, touched the wooden hoarding board on the side of the rear lane on his way and shone a torch light;

40.4 The Defendant remained inside the rear lanes area for about 20 minutes;

40.5 The Defendant shone a torch light in the rear lane for at least 4 times for a duration of 5-6 seconds each at an interval of 3 to 6 minutes, which could be seen from the entry way of the rear lane of No 111-113 Chatham Road South;

40.6 When the Defendant came out from the rear lane and was stopped outside No 119A Chatham Road South, he was found to be holding a torch (Exh P11) in his hand, carrying the articles set out in Charge 1, which included a screwdriver, two pairs of pliers, one spanner, on pair of scissors, plastic gloves and one face mask, in his sling bag and a credit card, a HKID card and a China Re-entry card belonging to another person, in his wallet;

40.7 At all material times the Defendant was not at his place of abode.

41. The only irresistible inference to be drawn from these directly proven facts was that the Defendant was having with him the articles set out in Charge 1 for the purpose and with the intention of using them in the course of some theft. I was satisfied all the elements of the Charge 1 had been proven by the Prosecution to the required standard and I convicted the Defendant of the Charge 1 accordingly.

42. The evidence accepted clearly showed that the credit card, the HKID Card and the China Re-entry Card were items of property, each belonging to a person other than the Defendant and the Defendant knew that they belonged to a person other than himself. The Defendant did not hold the belief that they were abandoned property. With the information displayed on the said three cards, the owner of them could readily be located. I rejected his evidence that he intended to take them to a police station. By applying the Ghosh test, I was sure that the Defendant was dishonest at the time when he kept them in his wallet. I was sure that the Defendant had the intention to permanently deprive the owner(s) of them. What the Defendant did was dishonest by the ordinary standards of reasonable and honest people and the Defendant himself must have realized that what he was doing would be regarded as dishonest by those standards. I was satisfied all the elements of the Amended Charge 2 and Additional Charge 5 had been proven by the Prosecution to the required standard and I convicted the Defendant of the Amended Charge 2 and Additional Charge 5 accordingly.

43. I found that the Defendant had been found in possession of the HKID card belonging to another person without lawful authority or reasonable excuse.  I was satisfied all the elements of the Additional Charge 4 had been proven by the Prosecution to the required standard and I convicted the Defendant of the Additional Charge 4 accordingly.”

9.  The Magistrate properly directed herself in respect of the burden and standard of proof required at para 26.

10.  As can be seen from the paragraphs cited, The Magistrate carefully evaluated the evidence of the prosecution witnesses and accepted their evidence (see paras 10‑21 of the Statement).

11.  The Magistrate also carefully evaluated the evidence of the appellant and disbelieved his evidence (see paras 22‑25 of the Statement).

12.  I entirely agree with the respondent’s submission that the Magistrate had committed no fault in the course of analyzing and evaluating the evidence.

GROUND OF APPEAL

13.  The appellant’s is not represented in the hearing.  He did not file any written ground of appeal against conviction.  His sole ground as stated in his attachment to his Form 101, is as follows :

“and that I am not guilty of the said offence”

14.  I note that legal aid for his appeal against conviction is already refused.

REPLY TO THE GROUND OF APPEAL IN RESPECT OF CONVICVTION

15.  Mr Prakash L Daryannai, Senior Public Prosecutor, submitted on behalf of the respondent in his written submission that the Magistrate had clearly accepted the version of the two police officers and completely rejected the version of the appellant to the extent that the testimony of the appellant could not raise any reasonable doubt of the prosecution case.  He reiterated what the Magistrate had said in paras 40‑43 of the Statement and submitted that charge1‑2 and 4‑5 were proved by the correct analysis by the Magistrate.

16.  The respondent submitted that the evidence of the two police officers is logical and consistent. 

17.  In respect of the credibility of witnesses, the respondent submitted the law is well stated in HKSAR v Singh Balraj [2003] 3 HKC 621 at para 14 :-

“14. Whether or not a prosecution witness’s evidence can be safely accepted or a defence witness’s evidence can be safely rejected depends very often on the impression which the magistrate forms when seeing and hearing the witnesses. Such an impression, which will naturally be formed in the context of the inherent probabilities, does not readily lend itself to being described in words. If our legal system proceeded on the bases that the appellate court needed to have such a description, it would not room for the jury system. And yet the jury system exists as the one to which the most serious criminal cases are entrusted under our legal system.”

DISCUSSION

18.  This is a case which entirely revolves around the findings by the Magistrate regarding the credibility of the two police witnesses called by the prosecution and the appellant.  The appellant was properly represented by a duty lawyer during the trial and the Magistrate had taken on board all the relevant submissions that could be made on his behalf.  The Magistrate was aware of the inconsistencies between the two police witnesses but concluded, and in my view properly, that those were only minor and did not go to affect the credibility of the two police officers.  On the other hand, the Magistrate had carefully considered the explanations proffered by the appellant in the witness box but, again based on sound and logical reasons, had rejected all of his explanations.  The convictions that followed and entered by the Magistrate were therefore only inevitable.  During the hearing, the appellant was unable to raise any arguable ground to demonstrate how the Magistrate had made any mistake in reaching her conclusions and convictions on all the four charges against him.  He just repeatedly urged me to re‑consider the case and give him a favourable finding.

19.  A Magistracy appeal is in the nature of re‑hearing on the papers and the appellate court will only depart from a magistrate’s determination of witness credibility if it is “plainly wrong” (see HKSAR v FOK, James Alistair [2015] 4 HKC 247).  At para 10 the test of plainly wrong is said to be as follows:- 

“10. In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, the finding was one that no reasonable magistrate could have reached.”

20.  The magistrate has had the advantage of seeing and hearing the witness and is in a better position to assess his credibility.  It is for that reason that an appellate court will only depart from a magistrate’s determination of the credibility of a witness if it is “plainly wrong”.  In my analysis, the Magistrate did not commit any error in her assessment of the credibility of the witnesses and had committed no fault in the course of analyzing and evaluating the evidence.  Her finding of fact and therefore the guilty verdicts reached should not be interfered with.

CONCLUSION

21.  The appeal against conviction by the appellant is dismissed accordingly.