區域法院（刑事）Deputy District Judge K K Leung17/3/2024[2024] HKDC 453
DCCC218/2023
A A
B B
DCCC 218/2023
C [2024] HKDC 453 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 218 OF 2023
F F
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G G
HKSAR
H v H
EGINA Samson Samson
I I
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J J
Before: Deputy District Judge K K Leung
K K
Date: 18 March 2024
L Present: Ms Karinna Lai1, Public Prosecutor, for HKSAR L
Mr Sajan G Sujanani, instructed by Messrs Adrian Yeung &
M M
Cheng, assigned by the Director of Legal Aid, for the defendant
N N
Offence: Theft (盜竊罪)
O O
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P P
REASONS FOR VERDICT
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S S
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1
Mr Shaun Kelly, Counsel on Fiat, for HKSAR (Trial).
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A A
B B
THE CHARGE
C C
1. The defendant pleaded not guilty to one count of theft,
D D
contrary to section 9 of the Theft Ordinance, Cap 210.
E E
BACKGROUND
F F
G 2. It is the prosecution case that the defendant, together with G
another male unknown, stole Mr Wong’s (PW1) Rolex watch valued at
H H
HK$105,000 outside No. 72 Kimberley Road, Tsim Sha Tsui.
I I
3. In the small hours of 19 November 2022, after having some
J J
drinks with friends, PW1 called for Uber service to take him home. While
K waiting for Uber to come, PW1 seated on the stair steps of a restaurant on K
Kimberley Road to have a brief rest. PW1 had his Rolex watch worn on
L L
his left wrist. Defendant together with an unknown male approached PW1.
M Defendant pulled PW1’s left wrist forcefully and stole PW1’s Rolex watch. M
The defendant and the unknown male then started to run. PW1
N N
immediately gave chase. During the course of chasing, a plainclothes
O police officer gave assistance and had the defendant apprehended. The O
accomplice of the defendant ran away without being caught. The Rolex
P P
watch was not found.
Q Q
4. It is the defence case that the defendant denied stealing PW1’s
R R
Rolex watch. The defence did not dispute that PW1’s Rolex watch was
S being stolen at that time, however, the person who took his watch was not S
T T
U U
V V
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A A
B B
the defendant. Defendant was a bystander walking with his Kenyan friend
C and had never taken the Rolex watch of PW1. C
D D
5. The main issue of the case is identification.
E E
TRIAL
F F
G 6. The prosecution called 2 prosecution witnesses. They were G
PW1 Mr Wong Chit (PW1) and police constable 11663 (PW2).
H H
I 7. Admitted facts (Exhibit P4) were agreed pursuant to section I
65C of the Criminal Procedure Ordinance, Cap 221.
J J
K 8. After the conclusion of the prosecution case, the defence K
made no half time submission. I found there is a case to answer for the
L L
charge.
M M
9. The defendant elected to give evidence but called no witness.
N N
O PROSECUTION CASE O
P P
PW1 Mr Wong Chit
Q Q
10. PW1 is 33 years old. He was an advertisement designer and is
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now a civil engineer.
S S
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U U
V V
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A A
B B
11. At around midnight on 19 November 2022, PW1 drank with
C his friends at a bar called “Spin” on 6/F of a building in Knutsford Terrace, C
Tsim Sha Tsui. At round 2-3 am, PW1 said goodbye and chatted with his
D D
friends on the street. Sometime around 4 am, PW1 called for Uber service
E to take him home in Tseung Kwan O. E
F F
12. PW1 waited for Uber to come at Kimberly Road. PW1 seated
G alone on the stair steps of the entrance of a restaurant on Kimberly Road G
and took a brief rest.
H H
I 13. PW1 was wearing his Rolex watch on his left wrist at the I
material time.
J J
K 14. While PW1 was seating on the stair steps and waiting for Uber, K
he felt his left wrist was pulled by someone forcefully and then noticed that
L L
his Rolex watch was gone. PW1 immediately stood up and looked to his
M left side. PW1 saw two people with dark skin, one was tall and the other M
was short, running. PW1 shouted “Robbery”.
N N
O 15. It was the evidence of PW1 that when PW1’s left wrist was O
pulled, it was the taller male who took his Rolex watch. PW1 confirmed
P P
that the taller male was the defendant.
Q Q
16. PW1 testified that there was no other pedestrian apart from
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these two people with dark skin on the street.
S S
T T
U U
V V
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A A
B B
17. PW1 described that both people with dark skin were male.
C They were around 30-40 years old. The taller one was stronger in terms of C
body built and wore pale grey or white color clothing on his upper body
D D
and grey or dark grey on lower body. The shorter one was dressed in red.
E E
18. There were streetlights and lighting was sufficient at the stair
F F
steps where PW1’s left wrist was pulled. The lighting was also sufficient
G to allow PW1 to see the two males running and to keep them chasing. G
H H
19. The two males were fleeing in the same direction. PW1 kept
I shouting “Robbery” and chasing after the two males. As PW1 was shouting, I
someone came up and helped PW1 to chase after the two males. PW1 then
J J
noticed a police vehicle with flashing lights on in Cameron Road (location
K marked “x” in Exhibit P1C). PW1 was informed that the one who helped K
PW1 chasing the two males was a plainclothes police officer, PW2. PW1
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then saw PW2 kept running after the two males.
M M
20. The two males ran along Kimberley Street and turned left to
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run on Shun Yee Street, down to Cameron Road and then along Carnarvon
O Road and finally to the rear lane/alley of Carnarvon Road (see the O
highlighted route in Exhibit P1B). PW1 did not get into the rear lane/alley
P P
as he noted that PW2 had already picked up the chase of the two males.
Q Q
21. The male with a stronger built, ie the defendant, was
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apprehended by PW2 at the rear lane/alley of Carnarvon Road, however,
S the other male had gone. At the scene, PW1 identified defendant was the S
person who stole his watch.
T T
U U
V V
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A A
B B
C 22. The Rolex watch was not found. C
D D
The Rolex watch
E E
23. The Rolex watch being stolen belonged to PW1. PW1
F F
purchased the Rolex watch on 22 December 2018 in Hong Kong at the
G price of HK$105,000. G
H H
24. PW1 produced the receipt and the authenticity certificate
I /warranty card of the Rolex watch as Exhibit P2 and P3 respectively. I
J J
25. Under cross examination, PW1 testified that:
K K
(a) PW1 had taken cocktails and beers with his friends at
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the “Spin” bar. He was slightly tipsy at Kimberley
M Road. M
N N
(b) When PW1 was waiting for Uber at Kimberley Road,
O he closed his eyes and took a brief rest. But when he O
felt the strong pull of his left wrist, he became
P P
conscious and found his Rolex watch was missing.
Q Q
(c) It was put to PW1 that it happened during Covid period,
R R
therefore, everyone was wearing mask. PW1 admitted
S he could not see the face of the person who took his S
Rolex watch but was able to see the shape of the head,
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U U
V V
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A A
B B
the skin color, body built, height and the attire of the
C person. PW1 also noticed the person had an accomplice. C
PW1 was certain it was the stronger built person, ie the
D D
defendant, who touched his wrist to pull and took his
E Rolex watch. E
F F
(d) In the 2 witness statements 2 of PW1, there was no
G mention that PW1 identified the defendant at the scene G
when the defendant was apprehended. Though it was
H H
not mentioned in the witness statements, PW1
I confirmed that he had pointed out to the police that the I
defendant was the person who stole his Rolex watch
J J
and it was also the police that asked him to identify the
K culprit at the scene. K
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(e) It was put to PW1 that the identification that PW1 made
M in court was not based on the person who stole his M
watch but based on the impression that PW1 had at the
N N
scene when the defendant was caught and further
O reinforced by recognizing defendant at the O
Identification Parade. PW1 disagreed. PW1 denied he
P P
was confused of the identification he made at the scene
Q and in the subsequent Identification Parade. Q
R R
S S
T 2
The 1st witness statement of PW1 was made on 19 November 2022 8:15 am (few hours after the T
incident took place) and the 2nd witness statement on 20 November 2022 4:00 pm.
U U
V V
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A A
B B
(f) It is put to PW1 that the observation PW1 had made at
C Kimberley Road last for around 15 seconds, PW1 could C
not take a good look of the person who stole his Rolex
D D
watch. PW1 denied. PW1 reiterated that he was able to
E see the shape of the head, the skin color, body built, E
height and the attire of the person at the time when his
F F
Rolex watch was stolen.
G G
(g) It was put to PW1 that the defendant is 1.93 metre of
H H
height and big built but not 1.8 metre tall and medium
I built as PW1 stated in his witness statement. I
J J
(h) PW1 disagreed that he had mistaken that the defendant
K was the person who stole his watch. PW1 disagreed K
that the defendant was actually a bystander and had
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never taken PW1’s watch.
M M
PW2 PC 11660
N N
O 26. On 19 November 2022, PW2 was on duty in plainclothes from O
22003 to 0720 hours and performed anti-crime patrol task in Tsim Sha Tsui
P P
area.
Q Q
27. At around 0453 hours, PW2 was at No 5 Observatory Road,
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Tsim Sha Tsui. PW2 saw two south Asian males running out from the
S Road and was closely following by a Chinese male, PW1. PW1 shouted, S
T T
3
18 November 2022.
U U
V V
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A A
B B
“He stole my watch!” loudly. PW2 came to know that the person whom
C PW1 referred to were the two south Asian males that PW1 was chasing. C
D D
28. Having seen the situation, PW2 followed PW1 to give chase
E to the two south Asian males, one was running in front and the other behind. E
PW2 was at a distance of 5 meters away from the south Asian male running
F F
behind. PW2 continued chasing them in various streets. PW2 then lost
G sight of the south Asia male who was running in front when PW2 made a G
left turn from Cameron Road to Carnarvon Road. The one running behind
H H
then ran into the rare lane/alley of Carnarvon Road. PW2 followed. This
I south Asian male, whom PW2 identified to be the defendant, then finally I
stopped in the middle of the rear lane/alley of Carnarvon Road as it was a
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cul-de-sac. PW2 conducted body search and found that there was no
K weapon on the defendant. Defendant was then attended by other K
colleagues of PW2.
L L
M 29. PW2 approached PW1 to make enquiry. When defendant was M
bought to the main Carnarvon Road from the rear lane/alley, PW1 pointed
N N
out that defendant was the one who stole his watch.
O O
Body search and enquiry
P P
Q 30. During body search, PW2 found a Samsung mobile phone Q
with a black case from the left front pocket of defendant’s pants and
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$11,000 from the right front pocket. A hotel key card and Form 8 document
S were found in the back pocket of defendant’s pants. S
T T
U U
V V
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A A
B B
31. PW2 made enquiry from defendant in simple English by
C asking him “Did you steal something” and “why do you run away”. C
Defendant did not give any reply. PW2 was not sure whether defendant
D D
understood English or not.
E E
32. PW2 subsequently arrested the defendant and found that the
F F
defendant was from Tanzania. The defendant was brought to the Tsim Sha
G Tsui Police Station. G
H H
33. It was the evidence of PW2 that he could clearly see the south
I Asian males when they were running because there were streetlights all I
along. It was in the small hours of the day, there was no one on the street.
J J
K 34. Under cross examination, PW2 added that after PW2 followed K
the defendant to enter into the rear lane/alley, three other police officers
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joined. Two of them were in uniform and the other one in plainclothes.
M When they were in the rear lane/alley, a touch had been used by the police. M
Two body searches were conducted on defendant and the defendant did not
N N
resist to being searched. The Rolex watch of PW1 was not found.
O O
35. PW2 disagreed that PW1 identified defendant hesitantly and
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without confidence at the scene.
Q Q
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S S
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A A
B B
Case to Answer
C C
36. At the close of the Prosecution case, there was no half-time
D D
submission by the defence. I ruled that there was a case to answer in
E respect of the charge that the defendant was facing. E
F F
Defence Case
G G
37. The defendant elected to give evidence. There was no defence
H H
witness.
I I
Defendant
J J
K 38. Defendant is 28 years old. He is a Tanzanian and speaks K
Swahili. He is a Form 8 holder.
L L
M 39. At around 2100 hours of 18 November 2022, the defendant M
was with his friend, Peter, in the star ferry at Tsim Sha Tsui. They were
N N
drinking alcohol together. Peter informed the defendant that he had to
O leave after he received a phone call. Peter gave $11,000 to the defendant O
and asked the defendant to give to the landlord in the morning. Peter told
P P
defendant that he was not sure if he was going to return in the morning.
Q Peter then left. Q
R R
40. Defendant and Peter were living together.
S S
T T
U U
V V
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A A
B B
41. Afterwards, the defendant went to a park near Shangri-la
C Hotel in Tsim Sha Tsui. At the park, there were people sitting and drinking. C
The defendant saw a black person from Kenya who was sitting alone and
D D
spoke Swahili. The defendant then approached the Kenyan and said hello.
E The defendant joined the Kenyan to drink beer together. When all the E
alcohol were consumed, the Kenyan told defendant that if defendant
F F
wanted to continue to drink, he could go to the Kenyan’s home. The
G Kenyan suggested to buy drinks from the Circle K convenient store as it G
offered discounts during the weekends. The defendant went to buy more
H H
alcohol and went to the Kenyan’s place.
I I
42. Afterwards when they were on their way, they passed
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Kimberley Road. While the defendant and the Kenyan were walking, he
K heard a loud voice. The defendant didn’t understand the language that the K
person was speaking. The defendant turned around and saw an Asian
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Chinese male. He was not sure if this Chinese male was PW1 or not. The
M Chinese male was walking fast, shouting and pointing fingers towards M
them. The defendant did not understand what the Chinese male was saying,
N N
so he walked a bit faster. The voice became louder, and defendant found
O the Chinese male was running towards him. The defendant did not know O
what was going on as defendant was at a state of drunkenness. The
P P
defendant then found himself running. The Chinese male kept running
Q after defendant. When defendant ran into the rear lane/alley, he turned Q
around and he couldn’t see the Chinese male anymore. He stopped running
R R
and started to walk.
S S
T T
U U
V V
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A A
B B
43. All of a sudden, there was touch light behind the defendant
C and footsteps of running was heard. The defendant saw an Indian or C
Pakistani police in uniform told him to stop. There were also other police
D D
officers in plainclothes. The defendant stopped. The Indian or Pakistani
E police told defendant that he saw him running. The defendant did not say E
anything and was body search twice by the police. The first time was at
F F
the rear lane/alley. The second time was on the main road after the police
G removed the defendant from the rear lane/alley. G
H H
44. It was the evidence of the defendant that he had never seen
I the Chinese male sitting in Kimberley Road. The defendant did not I
approach the Chinese male and had never touched his left arm. The
J J
defendant did not steal the Chinese male’s Rolex watch.
K K
45. The defendant is 1.93 meter tall with a big built.
L L
M 46. Under cross examination, the defendant testified that: M
N N
(a) He came to Hong Kong in 2017 and was given a Form
O 8 recognizance. O
P P
(b) Peter is a Tanzanian. Peter is a permanent resident in
Q Hong Kong and worked in a garage in Kam Tin. Q
Defendant had known Peter in the same year that he
R R
came to Hong Kong in 2017. The defendant started
S living with Peter in a guesthouse in Chung King S
Mansion in June 2022. Peter paid $5,000 every month
T T
U U
V V
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A A
B B
for the rent. The defendant did not contribute to the
C rent as he is a Form 8 holder who cannot work in Hong C
Kong.
D D
E (c) On 18 November 2022, when the defendant and Peter E
were at the star ferry, Peter gave $11,000 to defendant
F F
as Peter said he may not be able to return in the morning
G to give the rent to the landlord. G
H H
(d) The defendant did not want to be alone after Peter left,
I so he went to a park near the Shangri-la hotel and met I
a Kenyan. He forgot the name of the Kenyan. The
J J
Kenyan was shorter than the defendant. The defendant
K was bigger. The Kenyan home was in Tsim Sha Tsui K
area.
L L
M (e) The defendant did not understand English and M
Cantonese.
N N
O (f) When the defendant heard the loud voice, he and the O
Kenyan started to run and the Kenyan who was shorter
P P
was running in front and they were around 4.2 meters
Q apart. Q
R R
(g) When the Chinese male was pointing and shouting at
S the defendant and the Kenyan, there were no one else S
on the street. The defendant did not understand what
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U U
V V
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A A
B B
the male was shouting, and he started running. He was
C high from drinking. Though he was drunk, he did not C
stumble or fall during the course of running.
D D
E (h) The defendant denied that $11,000 belonged to himself. E
F F
(i) The defendant denied that he, together with the black
G male, stole the Rolex watch from PW1. G
H H
(j) The defendant denied that he ran because he knew he
I stole the watch and in order to avoid from being chased. I
J J
ANALYSIS
K K
47. I remind myself that the burden is on the prosecution to prove
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the case beyond reasonable doubt. The defendant has no burden to prove.
M M
48. I have carefully considered all the evidence, exhibits and the
N N
submissions made by both parties.
O O
49. It was submitted by the prosecution that4:
P P
Q (a) Subject to Turnbull directions, the Prosecution Q
submitted that the court can accept the identification of
R R
the defendant as the person who stole his Rolex watch
S as a correct and reliable identification S
T T
4
See Prosecution’s Closing Submissions.
U U
V V
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A A
B B
C (b) Defendant’s flight was not for an innocent reason. C
There was no logical reason as to why he fled the scene.
D D
Apart from drunkenness, the defendant gave no other
E explanation for his sustained flight from Kimberley E
Road to the alleyway behind Carnarvon Road.
F F
G (c) The Prosecution submitted that the court can rely on the G
correctness of PW1’s identification and the element of
H H
flight as consciousness of guilt to find the Prosecution
I to have proven the guilt of the defendant beyond I
reasonable doubt.
J J
K 50. It was submitted by the defence5 that: K
L L
(a) The Defence’s position is that the defendant was not
M involved in the theft and that he was an innocent, drunk, M
bystander who was mistakenly identified by PW1 and
N N
subsequently chased through areas of Tsim Sha Tsui till
O he was eventually intercepted by PW2. The crux of the O
Defence case is that PW1 mistakenly identified the
P P
Defendant as the man that stole his watch.
Q Q
(b) PW1 at first instance did not mention that he himself
R R
saw the person that removed his watch from his wrist
S and yet in cross examination he gave an account of S
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5
See Closing Submission on behalf of the defendant.
U U
V V
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A A
B B
seeing the person at his left take the watch. It is
C submitted that PW1 is confused as to what actually C
happened and even if PW1 did witness the watch being
D D
taken from his wrist he admitted he did not get a good
E look at the person’s face that took his watch in a mere E
15 seconds. It is submitted that the observations made
F F
by PW1 at the time of the theft if any was both a mere
G fleeting glance and poor and that he had mistakenly G
identified that defendant as the person that stole his
H H
watch.
I I
(c) Under cross-examination PW1 stated that he described
J J
the defendant as medium build as he was comparing
K him to other Africans, it is submitted that this K
explanation is not credible and the only explanation for
L L
the difference in build from that described by PW1 and
M that of the defendant is that the Defendant was not the M
same person that stole PW1’s watch.
N N
O (d) PW1’s identification of the defendant was made after O
seeing the defendant at the identity parade and not at
P P
the time the offence took place.
Q Q
(e) The watch was never found on the defendant.
R R
S (f) Based on all the factors, it would be unsafe to rely on S
PW1’s identification of the defendant.
T T
U U
V V
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A A
B B
(g) The defendant’s explanation amounts to an “innocent”
C C
reason for fleeing and accordingly no notice should be taken
D of the fact that the defendant was running or that it is D
evidence of guilt (HKSAR v So Tsz Kon [2015] 3 HKLRD
E E
169).
F F
51. It is not dispute that PW1 had his Rolex watch worn on his
G G
left wrist when he was waiting for Uber on Kimberley Road. It is also not
H
in dispute that his Rolex watch was stolen when he was on Kimberley Road, H
Tsim Sha Tsui. The main issue of the case is whether defendant was the
I I
person who stole PW1’s Rolex watch and defendant was acting with an
J unknown male at the material time. J
K K
52. The credibility and reliability of PW1 on evidence of
L identification is, therefore, the central issue of the case. L
M M
Identification
N N
53. As identification being the substantive issue, the Turnbull
O O
guidelines [1977] QB 224 applied.
P P
“First, whenever the case against an accused depends wholly or
Q substantially on the correctness of one or more identifications of Q
the accused which the defence alleges to be mistaken, the judge
should warn the jury of the special need for caution before
R R
convicting the accused in reliance on the correctness of the
identification or identifications. In addition he should instruct
S them as to the reason for the need for such a warning and should S
make some reference to the possibility that a mistaken witness
can be a convincing one and that a number of such witnesses can
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U U
V V
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A A
B all be mistaken. Provided this is done in clear terms the judge B
need not use any particular form of words.
C C
Secondly, the judge should direct the jury to examine closely the
circumstances in which the identification by each witness came
D to be made. How long did the witness have the accused under D
observation? At what distance? In what light? Was the
E
observation impeded in any way, as for example by passing E
traffic or a press of people? Had the witness ever seen the
accused before? How often? If only occasionally, had he any
F special reason for remembering the accused? How long elapsed F
between the original observation and the subsequent
identification to the police?
G G
All these matters go to the quality of the identification evidence.
H If the quality is good and remains good at the close of the H
accused’s case, the danger of a mistaken identification is
lessened; but the poorer the quality, the greater the danger.”
I I
J
54. I remind myself that I must approach the issue of J
identification with caution. An honest witness can be mistaken.
K K
L 55. It was the evidence of PW1 that there was no other pedestrian L
on the street except the two males. PW1 emphasised that he was certain
M M
on this. In fact, it was also the defence case that there was no other person
N when defendant was running with his Kenyan friend on the street. N
Therefore, the street was clear at the material time. As such, when PW1
O O
looked up and found there were two males, his observation was not
P impeded. P
Q Q
56. In addition, it is noted that, the moment when PW1 found his
R Rolex watch on his left wrist was stolen, he immediately looked up. When R
he looked up, he noticed the two males. There was no time gap in between.
S S
His attention at that moment was the people who took his watch. When
T T
U U
V V
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A A
B B
PW1 looked up, he was able to observe the features of the males, including
C their gender, age, skin color, body built, clothing and height. C
D D
57. PW1 was also able to distinguish the acts of the two males as
E well. PW1 said the male who was taller and stronger built, i.e. the E
defendant, was the one who took his watch. The male who was shorter
F F
was in front and the taller one was slightly behind when they were running.
G PW1 had never mixed up the two males even though they both have the G
same skin color.
H H
I 58. PW1 confirmed that there was sufficient lighting when he was I
making the observation. It was also the evidence of PW2 that there were
J J
streetlights. There were streetlights all along that allowed PW1 to run after
K the males all the way down the roads and until that chase was picked up K
and assisted by PW2. PW1 confirmed that the two males whom PW1 were
L L
chasing were the same two males that PW2 chased after when PW2 gave
M assistance. It is also not dispute that the defendant had taken the escape M
route highlighted in P1B. The defendant was then apprehended by PW2.
N N
The lighting was adequate. The chain of the chase has not been broken.
O O
59. I am aware that that no Rolex watch was found from
P P
defendant. It is also the facts of the case that defendant was acting with
Q one other male at the material time, and the other male had gone. Q
R R
60. I do not find that the height and built of the defendant
S described by PW1 in his witness statement, i.e. 1.83 meter and medium S
T T
U U
V V
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A A
B B
built and the height and built stated by defendant i.e. 1.93 meter and large
C built to be of material difference. C
D D
61. I also noted that under cross examination, PW1 said he had
E been drinking with his friends before the incident happened, PW1 was E
slightly tipsy at the material time and he had closed his eyes to take a brief
F F
rest on Kimberley Road.
G G
62. In order for a timepiece to be removed from the wrist, without
H H
the proper opening of the buckle and clasp of the watch straps, the strength
I of the pull required must be substantial to achieve the removal. In I
particular, it was a Rolex watch in the instant case. It was the evidence of
J J
PW1 that he felt a strong pull and then found that his watch had gone. The
K strength of the pull must be very heavy that enable him to be quickly aware K
of the situation. It was then that he became conscious and looked up and
L L
saw the two males. Under such circumstances, PW1’s attention must be
M focus on the persons who stole his watch. PW1 was certain that it was M
defendant who took his watch. In addition, there were no other people on
N N
the street except for the two males. He then gave chase of the two people
O and later assisted by PW2. As such, I do not find PW1 was affected by O
alcohol when he was making the observation.
P P
Q 63. Under cross examination, it was put to PW1 that he did not Q
mention he had identified the defendant at the scene in PW1’s two witness
R R
statements. It was put to PW1 that the reason was because he was confused
S of the identity. S
T T
U U
V V
- 22 -
A A
B B
64. Both PW1 and PW2 testified that PW1 had pointed out the
C defendant as the person who stole his Rolex watch at the scene. It had C
never been put to PW2 that identification at the scene was not made at the
D D
scene under cross examination. I considered that PW2 had to made enquiry
E from PW1 in the first place about the case before PW2 could confirm E
whether the person PW2 apprehended was the same one that PW1 had been
F F
chasing after. PW2 had also had to confirm the type of offence to arrest
G and the nature of property to search from the defendant. Also, it was G
admitted6 that defendant was arrested and cautioned by PW2 outside 37
H H
Carnarvon Road but not at the rear lane/alley. I found that PW1 had
I pointed out the defendant to PW2 at the scene and identified defendant to I
be the person who stole his Rolex watch.
J J
K 65. Under cross examination, PW2 never agreed that PW1 K
identified defendant at the scene hesitantly and without confidence.
L L
M 66. It is also not dispute that the defendant was identified by PW1 M
at the Identification Parade. As such, PW1 must have based on the
N N
observation he had made when his Rolex watch was stolen in order to point
O out the culprit at the Identification Parade. I am not convinced that PW1 O
was confused of the identification. I found that the observation regarding
P P
the gender, age, skin color, body built, clothing and height of the culprit
Q was made at the time when PW1’s Rolex watch was stolen. Q
R R
67. For the above consideration, I am sure that the identification
S of PW1 was not mistaken. S
T T
6
See para 7 of Exhibit P4.
U U
V V
- 23 -
A A
B B
C 68. I have carefully considered the defence’s case. C
D D
69. It was the defence’s case that the defendant and his Kenyan
E friend were on their way to the Kenyan home to drink together. So their E
main purpose was to continue to drink. The defendant had also bought
F F
some alcohol from the Circle K convenient store as the Kenyan suggested
G that discount was offered. However, no alcohol drinks were found from G
the defendant.
H H
I 70. The defendant explained that the $11,000 found from him I
under body search was given by his friend, Peter. It was the rent of the
J J
place where they were living together, and the monthly rent was HK$5,000.
K The defendant did not contribute to the rent as he is a Form 8 holder. They K
had been living together since June 2022. When defendant was asked why
L L
the amount was more than HK$5,000, he replied that it was usually paid
M one month more in advance as it was a guesthouse. It is noted that, in M
defendant’s earlier answer under cross examination, the rent was paid
N N
$5,000 every month by Peter. As the place had been rented for some time,
O the payment of one month’s rent in advance did not fit into the situation. O
Moreover, it was also peculiar for Peter to give $11,000, but not $10,000
P P
(two months’ rent) to defendant. Furthermore, the defendant was entrusted
Q with an important task to hand in the amount to the landlord, the defendant Q
did not clarify with Peter with the extra $1,000 being given.
R R
S S
T T
U U
V V
- 24 -
A A
B B
71. Defendant was not sure if the Chinese male who shouted and
C pointed at him was PW1 when the defendant and his Kenyan friend were C
on Kimberley Road. As the facts of the case shown, the Chinese male the
D D
defendant referred to must be PW1. The defendant did not understand what
E PW1 was saying, and he found PW1 shouting, pointing at them and E
Defendant began to run. In examination-in-chief, defendant was asked
F F
repreatedly if he was scared so he ran, defendant did not say so but replied
G that he was high and drunk at that time. Therefore, defendant did not run G
out of fear. Coincidently, when PW1 shouted at them, his Kenyan friend,
H H
like defendant, also ran with him without any prior exchange. The
I undisputed route showed, they had run for various streets with a significant I
distance. Moreover, it was noted that the defendant was running behind
J J
his Kenyan friend, but the defendant did not follow his Kenyan friend in
K the end. He was the only one who ran into the rear lane/the alley. The K
defendant did not seem to look for the whereabout of his Kenyan friend
L L
afterwards.
M M
72. Having considered the defence case, I do not find the evidence
N N
of defendant to be credible. Although I do not accept the evidence of the
O defendant, I have to consider whether the prosecution has proved the case O
beyond reasonable doubt.
P P
Q 73. The defence mainly contested the evidence of identification. Q
Apart from that, much of the facts of the case were not challenged.
R R
S S
T T
U U
V V
- 25 -
A A
B B
74. Having considered the evidence of PW1 and PW2, I find their
C evidence to be clear and cogent. They were unshaken under cross- C
examination and there was no inherent improbability in their evidence. I
D D
considered them honest and reliable. I accept PW1 and PW2’s evidence.
E E
75. From the above consideration, I find that PW1’s evidence on
F F
identification was not mistaken. I am sure it was the defendant who stole
G PW1’s Rolex watch at the material time together with another unknown G
male who had fled.
H H
I Flight I
J J
76. The prosecution relied on the evidence of flight to support its
K case. K
L L
77. In order for flight to be capable of providing support for the
M prosecution’s case, there must be some evidence to establish a connection M
between the defendant’s conduct (his flight) and the offence in question.
N N
(See Mo Shiu Shing [1999] 1 HKC 43 and Specimen Directions).
O O
P
78. In HKSAR v So Tsz Kon [2015] 3 HKLRD 169 , where the P
Court held at para 58:
Q Q
“The prosecution alleged that the defendant attempted to flee the
R R
scene after the crime. It is necessary for the jury to consider the
following questions:
S S
(1) Whether the defendant did in fact attempt to flee after the
crime. If the jury are sure he did, then next consider:
T T
U U
V V
- 26 -
A A
B (2) Why did the defendant flee? The mere fact that a B
defendant attempts to flee is not in itself evidence of guilt.
C There are many innocent reasons why a person may do C
so, for example, out of fear of the police, or due to
commission of an offence unrelated to the present one or
D of some other disgraceful act. If the jury think that there D
is, or may be, an innocent explanation for his attempted
E
flight, then they should take no notice of his attempted E
flight. It is only if the jury are sure that the defendant did
not attempt to flee for an innocent reason, but instead did
F so by reason of his being aware of having committed the F
offence in question and hence choosing to flee in order
to prevent the offence from coming to light, that they can
G G
regard his attempted flight as evidence which supports
the prosecution case.”
H H
79. At no stage defendant claimed that he ran because he was
I I
scared in his evidence.
J J
80. The defendant noticed that PW1 was shouting, pointing and
K K
running towards him. PW1 did not have any weapon in his hands. The
L defendant did not even understand what PW1 was saying. There was no L
signs of imminent danger or harm that PW1 would cause to the defendant.
M M
N 81. If defendant was a bystander, there was even no reason for N
him to run. Defendant said he was high because of drunkenness, I did not
O O
find it to be the reason to run under the circumstances because he had a
P companion to go with. Without any prior communication, it was weird that P
his Kenyan friend also run with the defendant together instantaneously and
Q Q
simultaneously. It was also unreasonable that defendant chose not to
R R
follow the running route of his Kenyan friend who was only a few meters
S
ahead of him. In the end, the defendant ran into the rear lane/alley while S
his Kenyan friend went to nowhere could be found. There must be an
T T
understanding between themselves so they both choose to run tirelessly
U U
V V
- 27 -
A A
B B
through various streets. The only reason that could be drawn was, the
C defendant chose to run in order to avoid being caught for stealing PW1’s C
Rolex watch.
D D
E 82. I am sure that there was nexus between the defendant’s flight E
and what happened on Kimberley Road. The defendant together with his
F F
accomplice fled immediately after PW1 found his Rolex watch was gone
G and PW1 stood up to chase after them. The only reasonable explanation G
for the defendant’s flight was that he was trying to flee from being caught
H H
for stealing PW1’s Rolex watch on Kimberley Road. I am satisfied that
I the defendant’s flight supported the prosecution’s case. I
J J
83. In view of the facts of the case, the evidence of flight is,
K however, only ancillary. Even if the evidence of flight could not be K
accepted as evidence to support the prosecution case, there would still have
L L
been sufficient evidence to find that defendant was the one who stole the
M Rolex watch of PW1. M
N N
CONCLUSION
O O
84. Having considered the above, I am sure that defendant,
P P
together with another male unknown, stole PW1’s Rolex watch in
Q Kimberley Road, Tsim Sha Tsui. Q
R R
S S
T T
U U
V V
- 28 -
A A
B B
85. I find the prosecution has proved the case beyond reasonable
C doubt. I convict the defendant of the charge. C
D D
E E
F F
( K K Leung )
G Deputy District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 218/2023
C [2024] HKDC 453 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 218 OF 2023
F F
---------------------------
G G
HKSAR
H v H
EGINA Samson Samson
I I
----------------------------
J J
Before: Deputy District Judge K K Leung
K K
Date: 18 March 2024
L Present: Ms Karinna Lai1, Public Prosecutor, for HKSAR L
Mr Sajan G Sujanani, instructed by Messrs Adrian Yeung &
M M
Cheng, assigned by the Director of Legal Aid, for the defendant
N N
Offence: Theft (盜竊罪)
O O
-----------------------------------------
P P
REASONS FOR VERDICT
Q ----------------------------------------- Q
R R
S S
T T
1
Mr Shaun Kelly, Counsel on Fiat, for HKSAR (Trial).
U U
V V
-2-
A A
B B
THE CHARGE
C C
1. The defendant pleaded not guilty to one count of theft,
D D
contrary to section 9 of the Theft Ordinance, Cap 210.
E E
BACKGROUND
F F
G 2. It is the prosecution case that the defendant, together with G
another male unknown, stole Mr Wong’s (PW1) Rolex watch valued at
H H
HK$105,000 outside No. 72 Kimberley Road, Tsim Sha Tsui.
I I
3. In the small hours of 19 November 2022, after having some
J J
drinks with friends, PW1 called for Uber service to take him home. While
K waiting for Uber to come, PW1 seated on the stair steps of a restaurant on K
Kimberley Road to have a brief rest. PW1 had his Rolex watch worn on
L L
his left wrist. Defendant together with an unknown male approached PW1.
M Defendant pulled PW1’s left wrist forcefully and stole PW1’s Rolex watch. M
The defendant and the unknown male then started to run. PW1
N N
immediately gave chase. During the course of chasing, a plainclothes
O police officer gave assistance and had the defendant apprehended. The O
accomplice of the defendant ran away without being caught. The Rolex
P P
watch was not found.
Q Q
4. It is the defence case that the defendant denied stealing PW1’s
R R
Rolex watch. The defence did not dispute that PW1’s Rolex watch was
S being stolen at that time, however, the person who took his watch was not S
T T
U U
V V
-3-
A A
B B
the defendant. Defendant was a bystander walking with his Kenyan friend
C and had never taken the Rolex watch of PW1. C
D D
5. The main issue of the case is identification.
E E
TRIAL
F F
G 6. The prosecution called 2 prosecution witnesses. They were G
PW1 Mr Wong Chit (PW1) and police constable 11663 (PW2).
H H
I 7. Admitted facts (Exhibit P4) were agreed pursuant to section I
65C of the Criminal Procedure Ordinance, Cap 221.
J J
K 8. After the conclusion of the prosecution case, the defence K
made no half time submission. I found there is a case to answer for the
L L
charge.
M M
9. The defendant elected to give evidence but called no witness.
N N
O PROSECUTION CASE O
P P
PW1 Mr Wong Chit
Q Q
10. PW1 is 33 years old. He was an advertisement designer and is
R R
now a civil engineer.
S S
T T
U U
V V
-4-
A A
B B
11. At around midnight on 19 November 2022, PW1 drank with
C his friends at a bar called “Spin” on 6/F of a building in Knutsford Terrace, C
Tsim Sha Tsui. At round 2-3 am, PW1 said goodbye and chatted with his
D D
friends on the street. Sometime around 4 am, PW1 called for Uber service
E to take him home in Tseung Kwan O. E
F F
12. PW1 waited for Uber to come at Kimberly Road. PW1 seated
G alone on the stair steps of the entrance of a restaurant on Kimberly Road G
and took a brief rest.
H H
I 13. PW1 was wearing his Rolex watch on his left wrist at the I
material time.
J J
K 14. While PW1 was seating on the stair steps and waiting for Uber, K
he felt his left wrist was pulled by someone forcefully and then noticed that
L L
his Rolex watch was gone. PW1 immediately stood up and looked to his
M left side. PW1 saw two people with dark skin, one was tall and the other M
was short, running. PW1 shouted “Robbery”.
N N
O 15. It was the evidence of PW1 that when PW1’s left wrist was O
pulled, it was the taller male who took his Rolex watch. PW1 confirmed
P P
that the taller male was the defendant.
Q Q
16. PW1 testified that there was no other pedestrian apart from
R R
these two people with dark skin on the street.
S S
T T
U U
V V
-5-
A A
B B
17. PW1 described that both people with dark skin were male.
C They were around 30-40 years old. The taller one was stronger in terms of C
body built and wore pale grey or white color clothing on his upper body
D D
and grey or dark grey on lower body. The shorter one was dressed in red.
E E
18. There were streetlights and lighting was sufficient at the stair
F F
steps where PW1’s left wrist was pulled. The lighting was also sufficient
G to allow PW1 to see the two males running and to keep them chasing. G
H H
19. The two males were fleeing in the same direction. PW1 kept
I shouting “Robbery” and chasing after the two males. As PW1 was shouting, I
someone came up and helped PW1 to chase after the two males. PW1 then
J J
noticed a police vehicle with flashing lights on in Cameron Road (location
K marked “x” in Exhibit P1C). PW1 was informed that the one who helped K
PW1 chasing the two males was a plainclothes police officer, PW2. PW1
L L
then saw PW2 kept running after the two males.
M M
20. The two males ran along Kimberley Street and turned left to
N N
run on Shun Yee Street, down to Cameron Road and then along Carnarvon
O Road and finally to the rear lane/alley of Carnarvon Road (see the O
highlighted route in Exhibit P1B). PW1 did not get into the rear lane/alley
P P
as he noted that PW2 had already picked up the chase of the two males.
Q Q
21. The male with a stronger built, ie the defendant, was
R R
apprehended by PW2 at the rear lane/alley of Carnarvon Road, however,
S the other male had gone. At the scene, PW1 identified defendant was the S
person who stole his watch.
T T
U U
V V
-6-
A A
B B
C 22. The Rolex watch was not found. C
D D
The Rolex watch
E E
23. The Rolex watch being stolen belonged to PW1. PW1
F F
purchased the Rolex watch on 22 December 2018 in Hong Kong at the
G price of HK$105,000. G
H H
24. PW1 produced the receipt and the authenticity certificate
I /warranty card of the Rolex watch as Exhibit P2 and P3 respectively. I
J J
25. Under cross examination, PW1 testified that:
K K
(a) PW1 had taken cocktails and beers with his friends at
L L
the “Spin” bar. He was slightly tipsy at Kimberley
M Road. M
N N
(b) When PW1 was waiting for Uber at Kimberley Road,
O he closed his eyes and took a brief rest. But when he O
felt the strong pull of his left wrist, he became
P P
conscious and found his Rolex watch was missing.
Q Q
(c) It was put to PW1 that it happened during Covid period,
R R
therefore, everyone was wearing mask. PW1 admitted
S he could not see the face of the person who took his S
Rolex watch but was able to see the shape of the head,
T T
U U
V V
-7-
A A
B B
the skin color, body built, height and the attire of the
C person. PW1 also noticed the person had an accomplice. C
PW1 was certain it was the stronger built person, ie the
D D
defendant, who touched his wrist to pull and took his
E Rolex watch. E
F F
(d) In the 2 witness statements 2 of PW1, there was no
G mention that PW1 identified the defendant at the scene G
when the defendant was apprehended. Though it was
H H
not mentioned in the witness statements, PW1
I confirmed that he had pointed out to the police that the I
defendant was the person who stole his Rolex watch
J J
and it was also the police that asked him to identify the
K culprit at the scene. K
L L
(e) It was put to PW1 that the identification that PW1 made
M in court was not based on the person who stole his M
watch but based on the impression that PW1 had at the
N N
scene when the defendant was caught and further
O reinforced by recognizing defendant at the O
Identification Parade. PW1 disagreed. PW1 denied he
P P
was confused of the identification he made at the scene
Q and in the subsequent Identification Parade. Q
R R
S S
T 2
The 1st witness statement of PW1 was made on 19 November 2022 8:15 am (few hours after the T
incident took place) and the 2nd witness statement on 20 November 2022 4:00 pm.
U U
V V
-8-
A A
B B
(f) It is put to PW1 that the observation PW1 had made at
C Kimberley Road last for around 15 seconds, PW1 could C
not take a good look of the person who stole his Rolex
D D
watch. PW1 denied. PW1 reiterated that he was able to
E see the shape of the head, the skin color, body built, E
height and the attire of the person at the time when his
F F
Rolex watch was stolen.
G G
(g) It was put to PW1 that the defendant is 1.93 metre of
H H
height and big built but not 1.8 metre tall and medium
I built as PW1 stated in his witness statement. I
J J
(h) PW1 disagreed that he had mistaken that the defendant
K was the person who stole his watch. PW1 disagreed K
that the defendant was actually a bystander and had
L L
never taken PW1’s watch.
M M
PW2 PC 11660
N N
O 26. On 19 November 2022, PW2 was on duty in plainclothes from O
22003 to 0720 hours and performed anti-crime patrol task in Tsim Sha Tsui
P P
area.
Q Q
27. At around 0453 hours, PW2 was at No 5 Observatory Road,
R R
Tsim Sha Tsui. PW2 saw two south Asian males running out from the
S Road and was closely following by a Chinese male, PW1. PW1 shouted, S
T T
3
18 November 2022.
U U
V V
-9-
A A
B B
“He stole my watch!” loudly. PW2 came to know that the person whom
C PW1 referred to were the two south Asian males that PW1 was chasing. C
D D
28. Having seen the situation, PW2 followed PW1 to give chase
E to the two south Asian males, one was running in front and the other behind. E
PW2 was at a distance of 5 meters away from the south Asian male running
F F
behind. PW2 continued chasing them in various streets. PW2 then lost
G sight of the south Asia male who was running in front when PW2 made a G
left turn from Cameron Road to Carnarvon Road. The one running behind
H H
then ran into the rare lane/alley of Carnarvon Road. PW2 followed. This
I south Asian male, whom PW2 identified to be the defendant, then finally I
stopped in the middle of the rear lane/alley of Carnarvon Road as it was a
J J
cul-de-sac. PW2 conducted body search and found that there was no
K weapon on the defendant. Defendant was then attended by other K
colleagues of PW2.
L L
M 29. PW2 approached PW1 to make enquiry. When defendant was M
bought to the main Carnarvon Road from the rear lane/alley, PW1 pointed
N N
out that defendant was the one who stole his watch.
O O
Body search and enquiry
P P
Q 30. During body search, PW2 found a Samsung mobile phone Q
with a black case from the left front pocket of defendant’s pants and
R R
$11,000 from the right front pocket. A hotel key card and Form 8 document
S were found in the back pocket of defendant’s pants. S
T T
U U
V V
- 10 -
A A
B B
31. PW2 made enquiry from defendant in simple English by
C asking him “Did you steal something” and “why do you run away”. C
Defendant did not give any reply. PW2 was not sure whether defendant
D D
understood English or not.
E E
32. PW2 subsequently arrested the defendant and found that the
F F
defendant was from Tanzania. The defendant was brought to the Tsim Sha
G Tsui Police Station. G
H H
33. It was the evidence of PW2 that he could clearly see the south
I Asian males when they were running because there were streetlights all I
along. It was in the small hours of the day, there was no one on the street.
J J
K 34. Under cross examination, PW2 added that after PW2 followed K
the defendant to enter into the rear lane/alley, three other police officers
L L
joined. Two of them were in uniform and the other one in plainclothes.
M When they were in the rear lane/alley, a touch had been used by the police. M
Two body searches were conducted on defendant and the defendant did not
N N
resist to being searched. The Rolex watch of PW1 was not found.
O O
35. PW2 disagreed that PW1 identified defendant hesitantly and
P P
without confidence at the scene.
Q Q
R R
S S
T T
U U
V V
- 11 -
A A
B B
Case to Answer
C C
36. At the close of the Prosecution case, there was no half-time
D D
submission by the defence. I ruled that there was a case to answer in
E respect of the charge that the defendant was facing. E
F F
Defence Case
G G
37. The defendant elected to give evidence. There was no defence
H H
witness.
I I
Defendant
J J
K 38. Defendant is 28 years old. He is a Tanzanian and speaks K
Swahili. He is a Form 8 holder.
L L
M 39. At around 2100 hours of 18 November 2022, the defendant M
was with his friend, Peter, in the star ferry at Tsim Sha Tsui. They were
N N
drinking alcohol together. Peter informed the defendant that he had to
O leave after he received a phone call. Peter gave $11,000 to the defendant O
and asked the defendant to give to the landlord in the morning. Peter told
P P
defendant that he was not sure if he was going to return in the morning.
Q Peter then left. Q
R R
40. Defendant and Peter were living together.
S S
T T
U U
V V
- 12 -
A A
B B
41. Afterwards, the defendant went to a park near Shangri-la
C Hotel in Tsim Sha Tsui. At the park, there were people sitting and drinking. C
The defendant saw a black person from Kenya who was sitting alone and
D D
spoke Swahili. The defendant then approached the Kenyan and said hello.
E The defendant joined the Kenyan to drink beer together. When all the E
alcohol were consumed, the Kenyan told defendant that if defendant
F F
wanted to continue to drink, he could go to the Kenyan’s home. The
G Kenyan suggested to buy drinks from the Circle K convenient store as it G
offered discounts during the weekends. The defendant went to buy more
H H
alcohol and went to the Kenyan’s place.
I I
42. Afterwards when they were on their way, they passed
J J
Kimberley Road. While the defendant and the Kenyan were walking, he
K heard a loud voice. The defendant didn’t understand the language that the K
person was speaking. The defendant turned around and saw an Asian
L L
Chinese male. He was not sure if this Chinese male was PW1 or not. The
M Chinese male was walking fast, shouting and pointing fingers towards M
them. The defendant did not understand what the Chinese male was saying,
N N
so he walked a bit faster. The voice became louder, and defendant found
O the Chinese male was running towards him. The defendant did not know O
what was going on as defendant was at a state of drunkenness. The
P P
defendant then found himself running. The Chinese male kept running
Q after defendant. When defendant ran into the rear lane/alley, he turned Q
around and he couldn’t see the Chinese male anymore. He stopped running
R R
and started to walk.
S S
T T
U U
V V
- 13 -
A A
B B
43. All of a sudden, there was touch light behind the defendant
C and footsteps of running was heard. The defendant saw an Indian or C
Pakistani police in uniform told him to stop. There were also other police
D D
officers in plainclothes. The defendant stopped. The Indian or Pakistani
E police told defendant that he saw him running. The defendant did not say E
anything and was body search twice by the police. The first time was at
F F
the rear lane/alley. The second time was on the main road after the police
G removed the defendant from the rear lane/alley. G
H H
44. It was the evidence of the defendant that he had never seen
I the Chinese male sitting in Kimberley Road. The defendant did not I
approach the Chinese male and had never touched his left arm. The
J J
defendant did not steal the Chinese male’s Rolex watch.
K K
45. The defendant is 1.93 meter tall with a big built.
L L
M 46. Under cross examination, the defendant testified that: M
N N
(a) He came to Hong Kong in 2017 and was given a Form
O 8 recognizance. O
P P
(b) Peter is a Tanzanian. Peter is a permanent resident in
Q Hong Kong and worked in a garage in Kam Tin. Q
Defendant had known Peter in the same year that he
R R
came to Hong Kong in 2017. The defendant started
S living with Peter in a guesthouse in Chung King S
Mansion in June 2022. Peter paid $5,000 every month
T T
U U
V V
- 14 -
A A
B B
for the rent. The defendant did not contribute to the
C rent as he is a Form 8 holder who cannot work in Hong C
Kong.
D D
E (c) On 18 November 2022, when the defendant and Peter E
were at the star ferry, Peter gave $11,000 to defendant
F F
as Peter said he may not be able to return in the morning
G to give the rent to the landlord. G
H H
(d) The defendant did not want to be alone after Peter left,
I so he went to a park near the Shangri-la hotel and met I
a Kenyan. He forgot the name of the Kenyan. The
J J
Kenyan was shorter than the defendant. The defendant
K was bigger. The Kenyan home was in Tsim Sha Tsui K
area.
L L
M (e) The defendant did not understand English and M
Cantonese.
N N
O (f) When the defendant heard the loud voice, he and the O
Kenyan started to run and the Kenyan who was shorter
P P
was running in front and they were around 4.2 meters
Q apart. Q
R R
(g) When the Chinese male was pointing and shouting at
S the defendant and the Kenyan, there were no one else S
on the street. The defendant did not understand what
T T
U U
V V
- 15 -
A A
B B
the male was shouting, and he started running. He was
C high from drinking. Though he was drunk, he did not C
stumble or fall during the course of running.
D D
E (h) The defendant denied that $11,000 belonged to himself. E
F F
(i) The defendant denied that he, together with the black
G male, stole the Rolex watch from PW1. G
H H
(j) The defendant denied that he ran because he knew he
I stole the watch and in order to avoid from being chased. I
J J
ANALYSIS
K K
47. I remind myself that the burden is on the prosecution to prove
L L
the case beyond reasonable doubt. The defendant has no burden to prove.
M M
48. I have carefully considered all the evidence, exhibits and the
N N
submissions made by both parties.
O O
49. It was submitted by the prosecution that4:
P P
Q (a) Subject to Turnbull directions, the Prosecution Q
submitted that the court can accept the identification of
R R
the defendant as the person who stole his Rolex watch
S as a correct and reliable identification S
T T
4
See Prosecution’s Closing Submissions.
U U
V V
- 16 -
A A
B B
C (b) Defendant’s flight was not for an innocent reason. C
There was no logical reason as to why he fled the scene.
D D
Apart from drunkenness, the defendant gave no other
E explanation for his sustained flight from Kimberley E
Road to the alleyway behind Carnarvon Road.
F F
G (c) The Prosecution submitted that the court can rely on the G
correctness of PW1’s identification and the element of
H H
flight as consciousness of guilt to find the Prosecution
I to have proven the guilt of the defendant beyond I
reasonable doubt.
J J
K 50. It was submitted by the defence5 that: K
L L
(a) The Defence’s position is that the defendant was not
M involved in the theft and that he was an innocent, drunk, M
bystander who was mistakenly identified by PW1 and
N N
subsequently chased through areas of Tsim Sha Tsui till
O he was eventually intercepted by PW2. The crux of the O
Defence case is that PW1 mistakenly identified the
P P
Defendant as the man that stole his watch.
Q Q
(b) PW1 at first instance did not mention that he himself
R R
saw the person that removed his watch from his wrist
S and yet in cross examination he gave an account of S
T T
5
See Closing Submission on behalf of the defendant.
U U
V V
- 17 -
A A
B B
seeing the person at his left take the watch. It is
C submitted that PW1 is confused as to what actually C
happened and even if PW1 did witness the watch being
D D
taken from his wrist he admitted he did not get a good
E look at the person’s face that took his watch in a mere E
15 seconds. It is submitted that the observations made
F F
by PW1 at the time of the theft if any was both a mere
G fleeting glance and poor and that he had mistakenly G
identified that defendant as the person that stole his
H H
watch.
I I
(c) Under cross-examination PW1 stated that he described
J J
the defendant as medium build as he was comparing
K him to other Africans, it is submitted that this K
explanation is not credible and the only explanation for
L L
the difference in build from that described by PW1 and
M that of the defendant is that the Defendant was not the M
same person that stole PW1’s watch.
N N
O (d) PW1’s identification of the defendant was made after O
seeing the defendant at the identity parade and not at
P P
the time the offence took place.
Q Q
(e) The watch was never found on the defendant.
R R
S (f) Based on all the factors, it would be unsafe to rely on S
PW1’s identification of the defendant.
T T
U U
V V
- 18 -
A A
B B
(g) The defendant’s explanation amounts to an “innocent”
C C
reason for fleeing and accordingly no notice should be taken
D of the fact that the defendant was running or that it is D
evidence of guilt (HKSAR v So Tsz Kon [2015] 3 HKLRD
E E
169).
F F
51. It is not dispute that PW1 had his Rolex watch worn on his
G G
left wrist when he was waiting for Uber on Kimberley Road. It is also not
H
in dispute that his Rolex watch was stolen when he was on Kimberley Road, H
Tsim Sha Tsui. The main issue of the case is whether defendant was the
I I
person who stole PW1’s Rolex watch and defendant was acting with an
J unknown male at the material time. J
K K
52. The credibility and reliability of PW1 on evidence of
L identification is, therefore, the central issue of the case. L
M M
Identification
N N
53. As identification being the substantive issue, the Turnbull
O O
guidelines [1977] QB 224 applied.
P P
“First, whenever the case against an accused depends wholly or
Q substantially on the correctness of one or more identifications of Q
the accused which the defence alleges to be mistaken, the judge
should warn the jury of the special need for caution before
R R
convicting the accused in reliance on the correctness of the
identification or identifications. In addition he should instruct
S them as to the reason for the need for such a warning and should S
make some reference to the possibility that a mistaken witness
can be a convincing one and that a number of such witnesses can
T T
U U
V V
- 19 -
A A
B all be mistaken. Provided this is done in clear terms the judge B
need not use any particular form of words.
C C
Secondly, the judge should direct the jury to examine closely the
circumstances in which the identification by each witness came
D to be made. How long did the witness have the accused under D
observation? At what distance? In what light? Was the
E
observation impeded in any way, as for example by passing E
traffic or a press of people? Had the witness ever seen the
accused before? How often? If only occasionally, had he any
F special reason for remembering the accused? How long elapsed F
between the original observation and the subsequent
identification to the police?
G G
All these matters go to the quality of the identification evidence.
H If the quality is good and remains good at the close of the H
accused’s case, the danger of a mistaken identification is
lessened; but the poorer the quality, the greater the danger.”
I I
J
54. I remind myself that I must approach the issue of J
identification with caution. An honest witness can be mistaken.
K K
L 55. It was the evidence of PW1 that there was no other pedestrian L
on the street except the two males. PW1 emphasised that he was certain
M M
on this. In fact, it was also the defence case that there was no other person
N when defendant was running with his Kenyan friend on the street. N
Therefore, the street was clear at the material time. As such, when PW1
O O
looked up and found there were two males, his observation was not
P impeded. P
Q Q
56. In addition, it is noted that, the moment when PW1 found his
R Rolex watch on his left wrist was stolen, he immediately looked up. When R
he looked up, he noticed the two males. There was no time gap in between.
S S
His attention at that moment was the people who took his watch. When
T T
U U
V V
- 20 -
A A
B B
PW1 looked up, he was able to observe the features of the males, including
C their gender, age, skin color, body built, clothing and height. C
D D
57. PW1 was also able to distinguish the acts of the two males as
E well. PW1 said the male who was taller and stronger built, i.e. the E
defendant, was the one who took his watch. The male who was shorter
F F
was in front and the taller one was slightly behind when they were running.
G PW1 had never mixed up the two males even though they both have the G
same skin color.
H H
I 58. PW1 confirmed that there was sufficient lighting when he was I
making the observation. It was also the evidence of PW2 that there were
J J
streetlights. There were streetlights all along that allowed PW1 to run after
K the males all the way down the roads and until that chase was picked up K
and assisted by PW2. PW1 confirmed that the two males whom PW1 were
L L
chasing were the same two males that PW2 chased after when PW2 gave
M assistance. It is also not dispute that the defendant had taken the escape M
route highlighted in P1B. The defendant was then apprehended by PW2.
N N
The lighting was adequate. The chain of the chase has not been broken.
O O
59. I am aware that that no Rolex watch was found from
P P
defendant. It is also the facts of the case that defendant was acting with
Q one other male at the material time, and the other male had gone. Q
R R
60. I do not find that the height and built of the defendant
S described by PW1 in his witness statement, i.e. 1.83 meter and medium S
T T
U U
V V
- 21 -
A A
B B
built and the height and built stated by defendant i.e. 1.93 meter and large
C built to be of material difference. C
D D
61. I also noted that under cross examination, PW1 said he had
E been drinking with his friends before the incident happened, PW1 was E
slightly tipsy at the material time and he had closed his eyes to take a brief
F F
rest on Kimberley Road.
G G
62. In order for a timepiece to be removed from the wrist, without
H H
the proper opening of the buckle and clasp of the watch straps, the strength
I of the pull required must be substantial to achieve the removal. In I
particular, it was a Rolex watch in the instant case. It was the evidence of
J J
PW1 that he felt a strong pull and then found that his watch had gone. The
K strength of the pull must be very heavy that enable him to be quickly aware K
of the situation. It was then that he became conscious and looked up and
L L
saw the two males. Under such circumstances, PW1’s attention must be
M focus on the persons who stole his watch. PW1 was certain that it was M
defendant who took his watch. In addition, there were no other people on
N N
the street except for the two males. He then gave chase of the two people
O and later assisted by PW2. As such, I do not find PW1 was affected by O
alcohol when he was making the observation.
P P
Q 63. Under cross examination, it was put to PW1 that he did not Q
mention he had identified the defendant at the scene in PW1’s two witness
R R
statements. It was put to PW1 that the reason was because he was confused
S of the identity. S
T T
U U
V V
- 22 -
A A
B B
64. Both PW1 and PW2 testified that PW1 had pointed out the
C defendant as the person who stole his Rolex watch at the scene. It had C
never been put to PW2 that identification at the scene was not made at the
D D
scene under cross examination. I considered that PW2 had to made enquiry
E from PW1 in the first place about the case before PW2 could confirm E
whether the person PW2 apprehended was the same one that PW1 had been
F F
chasing after. PW2 had also had to confirm the type of offence to arrest
G and the nature of property to search from the defendant. Also, it was G
admitted6 that defendant was arrested and cautioned by PW2 outside 37
H H
Carnarvon Road but not at the rear lane/alley. I found that PW1 had
I pointed out the defendant to PW2 at the scene and identified defendant to I
be the person who stole his Rolex watch.
J J
K 65. Under cross examination, PW2 never agreed that PW1 K
identified defendant at the scene hesitantly and without confidence.
L L
M 66. It is also not dispute that the defendant was identified by PW1 M
at the Identification Parade. As such, PW1 must have based on the
N N
observation he had made when his Rolex watch was stolen in order to point
O out the culprit at the Identification Parade. I am not convinced that PW1 O
was confused of the identification. I found that the observation regarding
P P
the gender, age, skin color, body built, clothing and height of the culprit
Q was made at the time when PW1’s Rolex watch was stolen. Q
R R
67. For the above consideration, I am sure that the identification
S of PW1 was not mistaken. S
T T
6
See para 7 of Exhibit P4.
U U
V V
- 23 -
A A
B B
C 68. I have carefully considered the defence’s case. C
D D
69. It was the defence’s case that the defendant and his Kenyan
E friend were on their way to the Kenyan home to drink together. So their E
main purpose was to continue to drink. The defendant had also bought
F F
some alcohol from the Circle K convenient store as the Kenyan suggested
G that discount was offered. However, no alcohol drinks were found from G
the defendant.
H H
I 70. The defendant explained that the $11,000 found from him I
under body search was given by his friend, Peter. It was the rent of the
J J
place where they were living together, and the monthly rent was HK$5,000.
K The defendant did not contribute to the rent as he is a Form 8 holder. They K
had been living together since June 2022. When defendant was asked why
L L
the amount was more than HK$5,000, he replied that it was usually paid
M one month more in advance as it was a guesthouse. It is noted that, in M
defendant’s earlier answer under cross examination, the rent was paid
N N
$5,000 every month by Peter. As the place had been rented for some time,
O the payment of one month’s rent in advance did not fit into the situation. O
Moreover, it was also peculiar for Peter to give $11,000, but not $10,000
P P
(two months’ rent) to defendant. Furthermore, the defendant was entrusted
Q with an important task to hand in the amount to the landlord, the defendant Q
did not clarify with Peter with the extra $1,000 being given.
R R
S S
T T
U U
V V
- 24 -
A A
B B
71. Defendant was not sure if the Chinese male who shouted and
C pointed at him was PW1 when the defendant and his Kenyan friend were C
on Kimberley Road. As the facts of the case shown, the Chinese male the
D D
defendant referred to must be PW1. The defendant did not understand what
E PW1 was saying, and he found PW1 shouting, pointing at them and E
Defendant began to run. In examination-in-chief, defendant was asked
F F
repreatedly if he was scared so he ran, defendant did not say so but replied
G that he was high and drunk at that time. Therefore, defendant did not run G
out of fear. Coincidently, when PW1 shouted at them, his Kenyan friend,
H H
like defendant, also ran with him without any prior exchange. The
I undisputed route showed, they had run for various streets with a significant I
distance. Moreover, it was noted that the defendant was running behind
J J
his Kenyan friend, but the defendant did not follow his Kenyan friend in
K the end. He was the only one who ran into the rear lane/the alley. The K
defendant did not seem to look for the whereabout of his Kenyan friend
L L
afterwards.
M M
72. Having considered the defence case, I do not find the evidence
N N
of defendant to be credible. Although I do not accept the evidence of the
O defendant, I have to consider whether the prosecution has proved the case O
beyond reasonable doubt.
P P
Q 73. The defence mainly contested the evidence of identification. Q
Apart from that, much of the facts of the case were not challenged.
R R
S S
T T
U U
V V
- 25 -
A A
B B
74. Having considered the evidence of PW1 and PW2, I find their
C evidence to be clear and cogent. They were unshaken under cross- C
examination and there was no inherent improbability in their evidence. I
D D
considered them honest and reliable. I accept PW1 and PW2’s evidence.
E E
75. From the above consideration, I find that PW1’s evidence on
F F
identification was not mistaken. I am sure it was the defendant who stole
G PW1’s Rolex watch at the material time together with another unknown G
male who had fled.
H H
I Flight I
J J
76. The prosecution relied on the evidence of flight to support its
K case. K
L L
77. In order for flight to be capable of providing support for the
M prosecution’s case, there must be some evidence to establish a connection M
between the defendant’s conduct (his flight) and the offence in question.
N N
(See Mo Shiu Shing [1999] 1 HKC 43 and Specimen Directions).
O O
P
78. In HKSAR v So Tsz Kon [2015] 3 HKLRD 169 , where the P
Court held at para 58:
Q Q
“The prosecution alleged that the defendant attempted to flee the
R R
scene after the crime. It is necessary for the jury to consider the
following questions:
S S
(1) Whether the defendant did in fact attempt to flee after the
crime. If the jury are sure he did, then next consider:
T T
U U
V V
- 26 -
A A
B (2) Why did the defendant flee? The mere fact that a B
defendant attempts to flee is not in itself evidence of guilt.
C There are many innocent reasons why a person may do C
so, for example, out of fear of the police, or due to
commission of an offence unrelated to the present one or
D of some other disgraceful act. If the jury think that there D
is, or may be, an innocent explanation for his attempted
E
flight, then they should take no notice of his attempted E
flight. It is only if the jury are sure that the defendant did
not attempt to flee for an innocent reason, but instead did
F so by reason of his being aware of having committed the F
offence in question and hence choosing to flee in order
to prevent the offence from coming to light, that they can
G G
regard his attempted flight as evidence which supports
the prosecution case.”
H H
79. At no stage defendant claimed that he ran because he was
I I
scared in his evidence.
J J
80. The defendant noticed that PW1 was shouting, pointing and
K K
running towards him. PW1 did not have any weapon in his hands. The
L defendant did not even understand what PW1 was saying. There was no L
signs of imminent danger or harm that PW1 would cause to the defendant.
M M
N 81. If defendant was a bystander, there was even no reason for N
him to run. Defendant said he was high because of drunkenness, I did not
O O
find it to be the reason to run under the circumstances because he had a
P companion to go with. Without any prior communication, it was weird that P
his Kenyan friend also run with the defendant together instantaneously and
Q Q
simultaneously. It was also unreasonable that defendant chose not to
R R
follow the running route of his Kenyan friend who was only a few meters
S
ahead of him. In the end, the defendant ran into the rear lane/alley while S
his Kenyan friend went to nowhere could be found. There must be an
T T
understanding between themselves so they both choose to run tirelessly
U U
V V
- 27 -
A A
B B
through various streets. The only reason that could be drawn was, the
C defendant chose to run in order to avoid being caught for stealing PW1’s C
Rolex watch.
D D
E 82. I am sure that there was nexus between the defendant’s flight E
and what happened on Kimberley Road. The defendant together with his
F F
accomplice fled immediately after PW1 found his Rolex watch was gone
G and PW1 stood up to chase after them. The only reasonable explanation G
for the defendant’s flight was that he was trying to flee from being caught
H H
for stealing PW1’s Rolex watch on Kimberley Road. I am satisfied that
I the defendant’s flight supported the prosecution’s case. I
J J
83. In view of the facts of the case, the evidence of flight is,
K however, only ancillary. Even if the evidence of flight could not be K
accepted as evidence to support the prosecution case, there would still have
L L
been sufficient evidence to find that defendant was the one who stole the
M Rolex watch of PW1. M
N N
CONCLUSION
O O
84. Having considered the above, I am sure that defendant,
P P
together with another male unknown, stole PW1’s Rolex watch in
Q Kimberley Road, Tsim Sha Tsui. Q
R R
S S
T T
U U
V V
- 28 -
A A
B B
85. I find the prosecution has proved the case beyond reasonable
C doubt. I convict the defendant of the charge. C
D D
E E
F F
( K K Leung )
G Deputy District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
DCCC218/2023 HKSAR v. EGINA SAMSON SAMSON - LawHero