HKSAR v. VEGA ALLAN B

DCCC 165/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 165 OF 2015

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Reasons for Verdict

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1.  At about 1225 hours on 10 April 2013, a tourist (PW1) from South Africa arrived at the Hong Kong International Airport. He was on the way to the mainland. While waiting for his checked luggage, he inadvertently left his hand-carry luggage unattended somewhere near the Reclaim Belt No 11 in the Luggage Reclaim Hall. He realised his mistake only after he left the restricted area.

2.  Inside his hand-carry luggage, there were several items of clothing and US$85,000 kept in two separate batches.  The luggage and its contents were never recovered.

3.  The prosecution contended that the defendant, Leung King-lam (PW2) and Chui On-ok (PW3) who were working at that time in the Luggage Reclaim Hall stole the hand-carry luggage and misappropriated the cash inside.

4.  The defendant faces one count of theft for the aforementioned items.  He pleaded not guilty to the charge.

5.  There is no issue of law involved.  The background of this case is unchallenged nor are the circumstances in which the victim lost his luggage and the content thereof.  The question to be determined by this court is factual.  Did the defendant force open the luggage, take out the cash and share amongst PW2, PW3 and himself the cash therein as alleged by the prosecution?

Undisputed facts

6.  Inside PW1’s missing luggage (a grey coloured spinner), there were items of clothing and cash in a total sum of US$85,000.  US$70,000 (all in $100 bills) were inside the zipped compartment and US$15,000 (in $50 bills) were hidden between layers of clothing.  It was locked with a combination lock. 

7.  The defendant, PW2 and PW3 were Customer Service Agents working as a team under the employ of SATS HK Limited.  They were on duty in the Luggage Reclaim Hall.  Their duties included safeguarding and processing the unattended and unclaimed luggage in the restricted area.  The defendant was in charge of the team working mainly at the Luggage Enquiry Desk situated between Reclaim Belts 7 and 8.

8.  During the house searches on 11 April 2013, the police recovered in the residences of PW2 and PW3 the sums of US$8,400 and US$8,300 respectively.  Both PW2 and PW3 were subsequently charged with and pleaded guilty to one count of theft for the said luggage and cash.  Their sentences were adjourned pending the outcome of the defendant’s trial.

Evidence

9.  The only evidence the prosecution relied on are the testimonies of PW2 and PW3.  They are to the effect that the defendant initiated the theft and divided the spoil among themselves.  After that PW3 discarded the luggage in the refuse room. 

Evidence of PW2 - Leung King-lam

10.  At about 1400 hours on 10 April 2013 whilst on duty in the Luggage Reclaim Hall, PW2 noticed near Reclaim Belt 11 an unattended luggage in black.  He picked it up and, together with other unclaimed luggage, took it back to the Luggage Enquiry Desk (where the defendant was on duty later) for further action.

11.  After tea break, PW2 resumed work at the Luggage Reclaim Hall and saw the defendant pry open the luggage with a ruler.  PW2 was about 4 to 5 feet away and had a glimpse of the several items of clothing inside.  His attention was then diverted elsewhere, but after a few seconds he heard someone exclaimed, “Wow.”  He turned and saw the defendant shutting the luggage.  PW2 even jokingly asked him in Cantonese if he had found some white powder, if so, he must throw it away.  The defendant replied, “No.  Just a lot of money.”  The defendant also said to another colleague, Chui On-lok (PW3), words to the same effect.

12.  The defendant then took a booklet from a rack nearby, pushed it inside the luggage, then took out a packet wrapped by the booklet and held it with both hands against his navel. Then he placed it inside the basket of the trolley he was pushing.  The defendant told PW2 and PW3 that they would look at it outside.

13.  They carried the other unclaimed luggage through Customs and went to a storeroom on the 3rd floor.  The defendant opened the packet to show them a wad of US$50 bills. The defendant then divided the wad into three parts, gave two of them to PW2 who then passed on one of them to PW3. PW2 pocketed the US dollars and went on with his other duties.

14.  At about 5 pm the same day PW2 received a call from the defendant asking him to go to the garden in Hall A. Before long, the defendant and PW3 appeared.  The three of them went to the storeroom where PW3 opened the said luggage and took out another wad of US dollars.  He handed it to PW2 who then passed it to the defendant.  The wad was not as thick but the bills were at the denomination of US$100.

15.  The defendant then separated the money and gave PW2 two wads.  PW2 kept one and gave PW3 the other before going back to work. The same evening he took the money home and hid it in the ceiling of his bedroom.

16.  On the 11th day of April 2013, PW2 was arrested.  During the cautioned interview that took place on the same day, PW2 gave an account largely similar to what he told this court. 

Cross-examination of PW2

17.  PW2 accepted that he had pleaded guilty to a charge of theft in respect of this incident.  The charge was the theft of US$85,000.  Sentence was pending the outcome of this trial.  He was hoping by giving evidence against the defendant he could benefit in the form of a lighter sentence.

18.  PW2 also stated that he did not count the money and only knew how much his share was after the police counted it.  There was no discussion as to how the money was to be divided, but PW2 assumed that it was to be divided equally.  However, in relation to the charge he pleaded guilty to, he had admitted he received US$13,400.  In the present proceedings he stated he only received US$8,400.

19.  When he found the luggage, the defendant had not started his shift.  The defendant’s job was to sit behind a desk to supervise other team members.  The luggage was lying near the Luggage Enquiry Desk for one to two hours before he saw the defendant probe it with a ruler.

20.  The Luggage Enquiry Desk was a 40-foot structure with 14 to 16 counters, at that time it was populated by about 10 people from various companies. There was no partition separating each counter.  The defendant prised open the luggage in front of the desk next to the column.  The storeroom was accessed by a key normally kept by Yang Siu Kei (PW4).  The defendant did not have a copy of the same.  He did not see PW3 open it with a key that day.  PW2 did not remember how the door was opened.

Evidence of PW3 - Chui On-lok

21.  At 4 pm PW3 was working in the Customs Hall when he heard someone uttered a rude expletive in Cantonese followed by words to the effect that there was so much money.  He turned and saw the defendant covering his belly with his hands while walking towards a column.  He was using a tourist map to cover something.  PW3 paid no further heed and, together with the defendant and PW2, each pushed a trolley full of unclaimed luggage to clear Customs for further processing.

22.  After clearing the Customs, the trio went to a storeroom on the 3rd floor.  The defendant went inside.  When PW3 went in, he saw the defendant counting money.  PW3 then went on with his duties outside the storeroom.  Later, PW2 handed him a wad of banknotes consisting of 100 pieces of US$50 bills.  PW3 pocketed it without counting.  When he was about to walk away, the defendant told him that he had not checked thoroughly, there could be more money in the luggage.

23.  Subsequently, PW3 took the luggage from the Desk to the storeroom.  On the way he found inside the luggage another wad of 100 US dollar bills.  He parked the luggage outside the storeroom and called the defendant and PW2.  They met up in the small garden in the Arrival Hall before going to the storeroom.  There PW3 took out a wad of money from the luggage and handed it to the defendant.  The defendant went inside the storeroom and did the counting.  After which PW2 passed on to him a wad of bank notes (33 pieces of US$100 notes.)

24.  PW3 was the last one to leave the storeroom.  On the way he disposed of the luggage in a refuse room.

25.  During the house search on 11 April 2013, the police officers found US$8,300 in D3’s residence. 

Cross-examination of PW3

26.  PW3 had a previous record of dishonesty.  In 1982 he was convicted of three counts of theft.  He also admitted that he had not disclosed this conviction to his employer.  He gave evidence in the hope of getting his own sentence reduced. 

27.  The defendant’s shift started at about 1500 hours.  He did not see the defendant open the luggage, but he stated otherwise during a cautioned interview shortly after his arrest on 11 April 2013.

28.  He agreed that on that day it was Yang Siu-kei (PW4) who had the key to the storeroom but stated that sometimes the key would be simply left in its keyhole.  He only knew he would be given money the moment PW2 handed it to him.  There was no discussion as to how the money was to be divided.

Evidence of PW4 - Yang Siu-kei

29.  PW4 was a Customer Service Agent under the employ of SATS.  He was on duty from 1500 hours on the 10th day of April 2013.  At 1700 hours he was on the way to the dispensary in the company of the defendant.  He saw PW3 clear a luggage through the Customs X-ray.  PW4 and the defendant returned to their duties 10 minutes later. 

30.  Under cross-examination, PW4 stated that he worked alongside the defendant at the Luggage Enquiry Desk although sometimes the defendant had to leave his post to deal with other matters.  On the 10th day of April PW4 was the only one charged with the custody of the key to the storeroom.  He would only lend the key to his colleagues if he was unable to attend to it personally.  The other key was the spare key kept in the safe in the office on the 6th floor.

Evidence of PW5 - Ma Ka-lun

31.  PW5, a Customer Services Manager of SATS, was tendered for cross-examination.  He vouched for the character of the defendant: that he was honest, reliable and hardworking.

Assessment of evidence of PW2 and PW3

32.  PW2 and 3 were witnesses crucial to the prosecution’s case.  They were both accomplices to the crime.  The prosecution has produced no independent evidence pointing to the defendant’s involvement. 

33.  The present state of law has dispensed with the requirement of warning oneself in considering the uncorroborated evidence of an accomplice (See section 60, Criminal Procedure Ordinance, Chapter 221, Laws of Hong Kong).  Yet it does not dispense with the extra care this court must take to assess their evidence.

34.  In my view both witnesses exhibited a flagrant amorality in their behaviour.  Both admitted that they gave evidence in the hope that they would be treated with clemency in the offence they pleaded guilty to.  PW3 had a previous conviction of dishonesty.  He also admitted that he did not disclose the fact of his conviction to his employer.

35.  Minor details excepted, the accounts given by PW3 are consistent with each other and with what they said earlier under caution.  They were unshaken under cross-examination, insisting on the veracity of their accounts.

36.  In my view, the minor inconsistencies alone do not affect their overall credibility.  However, what is glaring in this case is the absence of other evidence which should have been easily available or procurable.  According to both witnesses, the defendant had probed and forced open the luggage in front of the Desk situated between Reclaim Belts 7 and 8.  It was populated by staffs of other companies, and in plain view of the public and other airport staffs.  The defendant was also exposed to the risk of being caught by one of the CCTV cameras installed in the Luggage Reclaim Hall.  Yet no independent evidence in the form of testimonies of these interested parties and video footage was produced.

37.  The very event itself as described was improbable in the normal course of events.  Both witnesses showed a remarkable disinterest in how much money was found and how the same was to be distributed, but were content to leave the defendant to do the counting and distribution inside the storeroom.  None bothered to even ask how much there was and how the money was to be distributed.  Both witnesses gave this court a distinct impression that they were nonchalant about their share of the spoil.  PW2 did not even bother to count the wad of cash given to him.

38.  Bearing in mind that they were running a grave risk of losing their jobs and getting prosecuted for theft, their behaviour seemed to be out of the ordinary.  My impression was that they were minimising their involvement by painting themselves as playing a passive and minor role.

39.  In respect of the Theft charge both had been convicted of (ie DCCC 885/2014, MFI3), both PW2 and PW3 admitted that the three of them shared the US$85,000 found inside the unattended luggage.  In particular, PW2 stated that he was given a total of US$13,400, 130 pieces of US$100 notes.  In the present case he contended the share he was given was only US$4,400.  PW3 maintained that he was given only US$8,300.

40.  If, as PW2 stated in court, the understanding was to split the spoil in equal measures and that unbeknown to him, the defendant had taken the lion’s share, it was incomprehensible that he should admit in his own trial he had taken more than it was the case. Furthermore, although the counting was done inside the storeroom, it is difficult to understand why PW2 and PW3 chose to stay outside most of the time, although both contended they had a glimpse of the defendant counting and separating the money. 

41.  In their testimonies in court, both PW2 and PW3 were rather vague on how they repeatedly gained entrance into the storeroom. PW4 testified that he was the only one assigned to keep the key that day.  He would pass the key when he was too busy to personally attend to it and only to his colleague.  The spare key was kept in the safe of the company’s office. 

The defence case

42.  The defendant elected to give evidence.  The defendant is a Hong Kong resident, had been working for SATS for almost 2 years.  On the day in question he was just promoted to be “in-charge”, meaning not only would his salary be adjusted, he would also be instructing his co-workers and assigning tasks.  His shift started at 1530 hours when PW2 and PW3 had already been working in the Luggage Reclaim Hall.

43.  At some point in the afternoon he left his post at the desk with PW4 who requested his company in visiting the dispensary to buy medicine and drinks.  He did see at that point PW3 take a luggage to clear Customs.  He was not aware there was an unattended luggage.  He did not go to the storeroom.  He did not steal from the luggage. 

Assessment of the defendant’s testimony

44.  The defendant came up with a plain denial. There was not much information for this court to work on.  The court notes however that only he has a clear record; there is evidence to his positively good character:  PW5 agreed with the defence counsel’s suggestion that the defendant was honest, hardworking and reliable. 

45.  The court accepts the principle that a person of previous good character is less likely to commit the crime he is charged with and that his testimonies in court should be given more weight than those who for any reason would not put forward their good character as part of the defence case.

46.  The defendant basically denied any knowledge or involvement of the theft.  There is not really much material to work on apart from the reminder that he is less likely to commit such act of dishonesty. 

Reasons for finding

47.  It goes without saying that the prosecution must prove the case beyond all reasonable doubt.  To do so, it has the rather heavy burden of proving what happened was exactly as what PW2 and PW3 described.  Both PW2 and PW3 had the motive to shift the blame on the defendant.  PW3 also had a record of dishonesty.

48.  Having assessed their evidence, I found their accounts of events rather dubious.  I found I could not expel the probabilities that their evidence has been tainted by their desire to minimise their own involvement in order to put themselves in the most favourable light.

49.  On this evidence alone, I found I am unable to accept the course of events were exactly as they described.  I should say that I might take a different view if there were independent evidence such as CCTV footage or even cautioned statement from the defendant to corroborate with PW2 and 3’s account.  Unfortunately, there was none.  Therefore, in the circumstances, I am unable to say the prosecution has proved the case beyond all reasonable doubt and the charge must be dismissed.