DCCC490/2016 HKSAR v. ORTEGA MARCELO JR. ESPINOSA - LawHero
DCCC490/2016
HKSAR v. ORTEGA MARCELO JR. ESPINOSA
區域法院（刑事）Deputy District Judge Bina Chainrai16/12/2016
DCCC490/2016
A A
B DCCC 490/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 490 OF 2016
E E
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F HKSAR F
v
G G
ORTEGA Marcelo Jr. Espinosa (D2)
H ----------------- H
I I
Before : Deputy District Judge Bina Chainrai in Court
J Date of Verdict : 16 December, 2016 at 2:37 p.m. J
Present : Mr. Richard Donald, Counsel on fiat, for HKSAR/
K K
Director of Public Prosecutions
L Ms. Cecilia Liang Sun-yin, instructed by Messrs. Jal N. L
Karbhari & Co. for the D2
M M
Offences : (1) Attempted theft
N N
O O
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P REASONS FOR VERDICT P
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Q Q
R R
S S
T T
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1. The defendant, D2 on the indictment and so termed
C throughout, faces one charge of attempted theft, contrary to section 9 of the C
Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance,
D D
Cap. 200. He has denied the charge. The charge relates to an attempted
E theft, together with D1 on the indictment and other persons unknown, from E
PW1 in these proceedings – more commonly referred to as attempted
F F
pickpocketing. D1 admitted this charge at the outset, as well as charge 2
G on the indictment of breach of deportation order, contrary to section G
43(1)(a) of the Immigration Ordinance, Cap. 115 and the summary of facts
H H
as they related to him. I was satisfied beyond all reasonable doubt that the
I facts he had admitted supported the charges that he had admitted and I
accordingly I convicted D1 on both charges. Sentence had been adjourned
J J
until the conclusion of the trial of D2. There was no objection to my
K continuing to hear the trial of D2. K
L L
M 2. As D2 speaks Cebuano, a Cebuano interpreter was made M
available to him throughout the proceedings, which were all translated into
N N
Cebuano for him.
O O
P P
3. There were 2 prosecution witnesses. At the conclusion of the
Q Prosecution case, no submission of no case to answer in respect of the Q
charge was made by the Defence. I found that there was a case to answer
R R
on the charge. Having had his rights explained to him by his Counsel, D2
S elected not to give evidence and called no witnesses. That was his right, S
and I inferred nothing against him for exercising that right. After hearing
T T
final submissions from Counsel, I adjourned the matter to deliver my
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verdict. I have carefully considered all the evidence adduced before me as
C well as the submissions of Counsel for the Prosecution and Defence. I have C
borne in mind at all times that the burden of proof remains throughout upon
D D
the Prosecution to prove guilt beyond all reasonable doubt against D2.
E E
F F
Evidence
G 4. Facts admitted by the Prosecution and Defence at the outset G
under Section 65C of the Criminal Procedure Ordinance, Cap. 221, were
H H
produced and marked as Exhibit P4. These disclosed, inter alia, that:-
I I
a) At approximately 1.10 p.m. on 25/4/2016, PC 3196
J arrested D2 at or near the Cheung Sha Wan MTR Station. J
K b) At the material time, D2 was the holder of a Republic of K
Philippines passport No. EC 1092560. D2 had entered
L L
Hong Kong as a visitor on 13/4/2016 and was permitted
M to remain until 27/4/2016. M
N c) At 5 p.m. on 25/4/2016, DPC 4883 took 5 photographs of N
PW1 Wong Hin-wing and his black cross-body bag.
O O
These photographs were produced by agreement and
P marked as Exhibit P1 (1) to (5). P
Q d) At around 8.30 p.m. on 25/4/2016, DPC 9064 took 2 Q
photographs of D2. The photographs were produced by
R R
agreement and marked Exhibit P1 (6) – (7).
S S
e) The Immigration Movement Records of D1 and D2 were
T produced by agreement and marked as Exhibits P2 and P3 T
respectively.
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f) D2 has a clear record.
C C
D 5. The Immigration Movement Record of D2, Exhibit P3, D
shows that he entered Hong Kong on 15 occasions from 26/11/2015 to
E E
13/4/2016 using his Filipino passport. He last entered Hong Kong on
F F
13/4/2016 and was permitted to stay until 27/4/2016.
G G
H 6. PW1, Wong Hin-wing, testified that at about 12.55 p.m. on H
25/4/2016, he was at the Prince Edward MTR Station and he intended to
I I
take an MTR train to the Lai Chi Kok MTR Station – he was returning to
J his office. At the platform, platform No. 1, he queued to board the train at J
Door No. 5 of Car No. 7 – when the train arrived and the doors opened,
K K
he followed others to board the train. There were 3 persons ahead of him in
L the queue. It was lunchtime and he described the platform as busy. He L
confirmed that photos 1 to 5 of Exhibit P1 depicted his clothing at the
M M
material time and the cross-body bag that he was carrying. The cross-body
N N
bag was also produced and marked as Exhibit P5. He was also holding his
O
mobile phone in his left hand and he was texting at the time. O
P P
7. When he was about to board the train, with one foot inside the
Q Q
train, a group of persons pushed him from behind – he could not see the
R number of persons in the group, but when he turned to look at them after he R
had boarded the train, he saw that some in the group were not Chinese.
S S
T T
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8. After he entered the train carriage, he found that his way was
C blocked by someone in front of him – there was a lot of space behind this C
person – the male was facing PW1. PW1 said that he saw the person was
D D
not Chinese, so he gestured with his hand for him to move further into the
E carriage. PW1 said the male blocked him for about two seconds – he was E
wearing a white shirt with two chest pockets and short sleeves, and there
F F
was a packet of cigarettes in one of the chest pockets.
G G
H H
9. PW1 felt someone behind him was moving his cross-body
I
bag – it was an unusual movement – not the usual movement of the bag I
being pushed because of a crowded train. He also said that the train
J J
carriage was about one-third full. He looked at his bag and saw a hand
K inserted under the flap of his cross-body bag. PW1 demonstrated how the K
hand was under the flap of his cross-body bag. His cross-body bag
L L
contained his wallet with his credit cards and cash, his keys, some
M documents and his I-Pad Pro, as well as another holder containing his M
identity card.
N N
O O
10. A person who said he was a police officer pushed the hand
P P
away – he described the male who had inserted his hand under the flap of
Q his cross-body bag to be wearing a green top, and he had a rather dark Q
complexion and was about 1.6 metres tall. He was not Chinese. Nor was
R R
the man in the white shirt.
S S
T 11. The police officer pushed the man in the green top to the T
U
middle of the carriage and also asked the man in the white shirt to come U
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over and he had them both sit in the seats and handcuffed them together.
C Others in the car who were not Chinese moved away to other carriages. C
D D
12. PW1 described another male who had also blocked him, but
E E
described his role as not being the main role – he was also not Chinese. He
F F
had been in the vicinity of the male wearing the white shirt. He had no
G
recollection of what happened to this third male. G
H H
13. At Cheung Sha Wan MTR Station, he, the police officer and
I I
the two arrested persons and two members of the public who had helped to
J guard the two arrested males all alighted. Other police officers came to J
assist and PW1 was separated from the two arrested males.
K K
L L
14. PW1 was shown photos 6 and 7 of Exhibit P1 and said these
M M
depicted the male he had described as the male wearing the white shirt who
N had blocked his way and had stood facing him and who was subsequently N
handcuffed by the police officer.
O O
P P
15. PW1 also said that the man in white was not in the group that
Q Q
pushed him from behind – he had rushed into the train ahead of PW1.
R R
S S
16. Under cross-examination, PW1 said when he gestured to the
T male in white to move, he had moved 1 step immediately. He was face to T
face with him and this person had not touched his bag. He did not see any
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words or gestures exchanged between the man in green and the man in
C white. He described the time as being between 3 to 5 seconds from the C
time he indicated with his finger for the man in white to move and he saw
D D
the hand under the flap of his cross-body bag, and during this period, he
E had not seen any exchange of words or gestures between the two men. E
F F
G
17. It was admitted that the two photos 6 and 7 of Exhibit P1 G
depicted D2 in these proceedings.
H H
I I
18. PW2 was Sergeant Yu Kin-shing, a police officer with some
J 22 years in the Police Force – he was PW5 in the list of Prosecution J
witnesses submitted. He was on patrol inside the MTR in plain clothes at
K K
the material time. His attention was drawn to a group of 6 to 7 persons that
L included 1 female and the rest were males. They kept chatting and looked L
at the personal belongings of people waiting to board the train. Whilst he
M M
observed them for some to 6 to 7 minutes, 2 or 3 trains arrived and left at
N N
both Platforms 1 and 2, but the group did not board the trains on either
O
platform. He informed his colleagues of his suspicions by mobile O
telephone. Suddenly a train arrived at Platform No. 1. Passengers boarded
P P
the train normally. The group moved all together to the door of one of the
Q carriages and boarded the same carriage through the same door. He moved Q
closer to observe the group. He saw that they only joined the queue to
R R
board the train when the persons at the front of the queue had started
S boarding. They all queued to enter the same carriage, They surrounded a S
male at the rear of the queue waiting to board. He said that he stood about
T T
2 feet behind the victim i.e. PW1, to his right. They walked slowly to board
U the train. PW2 described seeing a male in a white top at the right of PW1 U
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use his left hand to try to open the fastener of the cross-body bag carried by
C PW1 at his right side – when he did this, he was about 1 foot from PW2 and C
they were boarding the train. The male in the white top was unsuccessful
D D
in opening the fastener of the cross-body bag carried by PW1. The male
E then walked ahead of PW1 and deliberately walked slowly, preventing E
PW1 from going ahead. Someone at PW2’s left very quickly interposed
F F
himself between PW2 and PW1 and stood between them. As they were all
G very close together, PW2 moved to the right so as to be able to see what G
might be done. He saw this person use his right hand to try to unfasten the
H H
fastener on the cross-body bag carried by PW1 but he was unsuccessful.
I This male turned his head to his left to look at another male at his left. At I
this point of time, they had almost boarded the train. He heard these two
J J
persons talking to each other in a language he did not understand. The
K male at the left interposed himself in front of PW2 and took out a black K
re-usable bag, Exhibit P6, from the bag he was carrying – this male wore a
L L
green top, (and is D1 in these proceedings).
M M
N N
19. PW2 described the first male who had unsuccessfully tried to
O open the fastener as wearing a short sleeved garment made of a soft fabric O
with a collar and buttons at the front and he did not wear glasses. He
P P
thought this male had walked to the left of PW1 ahead of him after he had
Q unsuccessfully tried to open the fastener. Q
R R
S 20. The second male who had unsuccessfully tried to open the S
fastener with his right hand also wore a short sleeved white shirt with a
T T
collar and buttons at the front. He carried a bag on his shoulder and he wore
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glasses. He had spoken to D1 after he had unsuccessfully tried to open the
C fastener. C
D D
21. PW2 described how D1 took out Exhibit P6 from the bag he
E E
was carrying and held it in his left hand to cover PW1’s bag and then
F F
reached his right hand under the flap of PW1’s bag. When he did this, the
G
male with the glasses was on the left of PW1, very close to him – while he G
thought the male without glasses was in front of PW1 but he did not pay
H H
much attention to him. When D1 inserted his hand under the flap of PW1’s
I
bag, they were all inside the train carriage. PW2 immediately shouted I
‘police’ and grabbed D1 with his right hand, and the male wearing glasses
J J
with his left hand. He did not notice where the man without glasses was as
K there were other people pressing around him. He spoke to PW1 and told K
him someone had tried to steal from him and to check his bag. PW1 also
L L
said he saw it. They then took the 2 males to the seats for them to sit down
M and he handcuffed them because they did resist. PW2 sought assistance M
from PW1 and other passengers. At Cheung Sha Wan MTR Station, PW2
N N
alighted with the 2 males, D1 and the male in glasses in the white shirt,
O together with PW1 and 2 other passengers who assisted to guard the 2 O
males, where they were joined by other police officers. PW1 told him he
P P
had checked his bag and nothing was missing. PW2 identified D2 to be the
Q second male who had tried unsuccessfully to open PW1’s bag. He also Q
confirmed that photos 6 and 7 of Exhibit P1 were photos of D2 and what he
R R
was wearing at the time of his arrest. He confirmed too that in the photos
S D2 was not wearing his glasses, he could not explain why. In response to a S
question from the Court, PW2 said that D2 had his back to PW1 until after
T T
he had apprehended both D1 and D2.
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22. PW2 drew 2 sketches that were produced and marked as
C Exhibits P7 and P8 respectively. Exhibit P7 depicted the position of the C
group including PW1 (described as ‘VTM’), D1 (described as ‘green top’),
D D
D2 (described as ‘P1’), the other man in white who had no glasses
E (described as ‘WP’) and himself (described as ‘SGT’ – Exhibit P7 depicted E
their positions as they boarded the train when WP first tried unsuccessfully
F F
to open the fastener of PW1’s bag. Exhibit P8 depicted their position after
G they had entered the carriage, when D1 inserted his hand under the flap of G
PW1’s bag. ‘WP’ was no longer shown on this sketch as PW2 did not
H H
notice his position.
I I
J 23. I have carefully considered all the evidence adduced before J
K
me as well as the submissions of Counsel. I have borne in mind at all times K
that the burden of proof remains throughout upon the Prosecution to prove
L L
guilt beyond all reasonable doubt. D2 elected to remain silent. That was
M
his right and I inferred nothing against him for exercising that right. M
N N
24. The facts at issue rely upon the credibility of witnesses and
O O
the weight to be attached to evidence. The 2 Prosecution witnesses each
P gave their account of what happened at the material time. Neither was P
shaken in cross-examination. There are a number of discrepancies
Q Q
between the accounts of PW 1 and PW2, and in my view, these are material
R discrepancies. R
S S
T T
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25. PW1 described the role of the man who had blocked him – he
C had been wearing a white shirt with two chest pockets. He was not wearing C
glasses. He said that the photos 6 and 7 depicted that man.
D D
E E
26. PW2 identified D2 to be the man in the said photos. He said
F F
at the material time, D2 had been wearing glasses, and he could not explain
G
why the photographs of D2 taken at the police station were taken of him G
without his glasses.
H H
I I
27. PW1 said the man in the white shirt apprehended by PW2 had
J stood face to face with him throughout, while PW2 said that D2 stood J
between him and PW1 and had his back to PW1. PW2 said he had seen D2
K K
unsuccessfully try to open the fastener of PW1’s bag. If all along D2 was
L face to face with PW1 then could PW2 have seen him try unsuccessfully to L
open PW’s bag’s fastener. PW2 said he had seen D2 talking to D1, while
M M
PW1 had not seen any such exchange between the man in the white shirt
N N
and the man in the green top.
O O
P 28. PW1 said the man in white was already in the train in front of P
him when he boarded, while PW2 said that D2 moved from behind PW1 to
Q Q
the left front of PW1.
R R
S S
29. PW2 said he caught D1 with his right hand and D2 with his
T left hand, and there was some resistance from them, so he had them sit on T
the seats and handcuffed them. PW1 said PW2 caught D1 and had him sit
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on the seat, and beckoned the man in the white shirt to sit in the seat next to
C D1 and then handcuffed them. He did not describe any resistance. C
D D
30. There are material discrepancies between the two accounts.
E E
They are discrepancies I find I am unable to resolve. I do find the
F F
circumstances very suspicious and D2 to be very suspicious. But as I have
G
doubt, the benefit of the doubt must be to D2 and he is acquitted of the G
charge.
H H
I I
J J
Bina Chainrai
K Deputy District Judge K
L L
M M
N N
O O
P P
Q Q
R R
S S
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B DCCC 490/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 490 OF 2016
E E
-----------------
F HKSAR F
v
G G
ORTEGA Marcelo Jr. Espinosa (D2)
H ----------------- H
I I
Before : Deputy District Judge Bina Chainrai in Court
J Date of Verdict : 16 December, 2016 at 2:37 p.m. J
Present : Mr. Richard Donald, Counsel on fiat, for HKSAR/
K K
Director of Public Prosecutions
L Ms. Cecilia Liang Sun-yin, instructed by Messrs. Jal N. L
Karbhari & Co. for the D2
M M
Offences : (1) Attempted theft
N N
O O
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P REASONS FOR VERDICT P
-------------------------------------------
Q Q
R R
S S
T T
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1. The defendant, D2 on the indictment and so termed
C throughout, faces one charge of attempted theft, contrary to section 9 of the C
Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance,
D D
Cap. 200. He has denied the charge. The charge relates to an attempted
E theft, together with D1 on the indictment and other persons unknown, from E
PW1 in these proceedings – more commonly referred to as attempted
F F
pickpocketing. D1 admitted this charge at the outset, as well as charge 2
G on the indictment of breach of deportation order, contrary to section G
43(1)(a) of the Immigration Ordinance, Cap. 115 and the summary of facts
H H
as they related to him. I was satisfied beyond all reasonable doubt that the
I facts he had admitted supported the charges that he had admitted and I
accordingly I convicted D1 on both charges. Sentence had been adjourned
J J
until the conclusion of the trial of D2. There was no objection to my
K continuing to hear the trial of D2. K
L L
M 2. As D2 speaks Cebuano, a Cebuano interpreter was made M
available to him throughout the proceedings, which were all translated into
N N
Cebuano for him.
O O
P P
3. There were 2 prosecution witnesses. At the conclusion of the
Q Prosecution case, no submission of no case to answer in respect of the Q
charge was made by the Defence. I found that there was a case to answer
R R
on the charge. Having had his rights explained to him by his Counsel, D2
S elected not to give evidence and called no witnesses. That was his right, S
and I inferred nothing against him for exercising that right. After hearing
T T
final submissions from Counsel, I adjourned the matter to deliver my
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verdict. I have carefully considered all the evidence adduced before me as
C well as the submissions of Counsel for the Prosecution and Defence. I have C
borne in mind at all times that the burden of proof remains throughout upon
D D
the Prosecution to prove guilt beyond all reasonable doubt against D2.
E E
F F
Evidence
G 4. Facts admitted by the Prosecution and Defence at the outset G
under Section 65C of the Criminal Procedure Ordinance, Cap. 221, were
H H
produced and marked as Exhibit P4. These disclosed, inter alia, that:-
I I
a) At approximately 1.10 p.m. on 25/4/2016, PC 3196
J arrested D2 at or near the Cheung Sha Wan MTR Station. J
K b) At the material time, D2 was the holder of a Republic of K
Philippines passport No. EC 1092560. D2 had entered
L L
Hong Kong as a visitor on 13/4/2016 and was permitted
M to remain until 27/4/2016. M
N c) At 5 p.m. on 25/4/2016, DPC 4883 took 5 photographs of N
PW1 Wong Hin-wing and his black cross-body bag.
O O
These photographs were produced by agreement and
P marked as Exhibit P1 (1) to (5). P
Q d) At around 8.30 p.m. on 25/4/2016, DPC 9064 took 2 Q
photographs of D2. The photographs were produced by
R R
agreement and marked Exhibit P1 (6) – (7).
S S
e) The Immigration Movement Records of D1 and D2 were
T produced by agreement and marked as Exhibits P2 and P3 T
respectively.
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f) D2 has a clear record.
C C
D 5. The Immigration Movement Record of D2, Exhibit P3, D
shows that he entered Hong Kong on 15 occasions from 26/11/2015 to
E E
13/4/2016 using his Filipino passport. He last entered Hong Kong on
F F
13/4/2016 and was permitted to stay until 27/4/2016.
G G
H 6. PW1, Wong Hin-wing, testified that at about 12.55 p.m. on H
25/4/2016, he was at the Prince Edward MTR Station and he intended to
I I
take an MTR train to the Lai Chi Kok MTR Station – he was returning to
J his office. At the platform, platform No. 1, he queued to board the train at J
Door No. 5 of Car No. 7 – when the train arrived and the doors opened,
K K
he followed others to board the train. There were 3 persons ahead of him in
L the queue. It was lunchtime and he described the platform as busy. He L
confirmed that photos 1 to 5 of Exhibit P1 depicted his clothing at the
M M
material time and the cross-body bag that he was carrying. The cross-body
N N
bag was also produced and marked as Exhibit P5. He was also holding his
O
mobile phone in his left hand and he was texting at the time. O
P P
7. When he was about to board the train, with one foot inside the
Q Q
train, a group of persons pushed him from behind – he could not see the
R number of persons in the group, but when he turned to look at them after he R
had boarded the train, he saw that some in the group were not Chinese.
S S
T T
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8. After he entered the train carriage, he found that his way was
C blocked by someone in front of him – there was a lot of space behind this C
person – the male was facing PW1. PW1 said that he saw the person was
D D
not Chinese, so he gestured with his hand for him to move further into the
E carriage. PW1 said the male blocked him for about two seconds – he was E
wearing a white shirt with two chest pockets and short sleeves, and there
F F
was a packet of cigarettes in one of the chest pockets.
G G
H H
9. PW1 felt someone behind him was moving his cross-body
I
bag – it was an unusual movement – not the usual movement of the bag I
being pushed because of a crowded train. He also said that the train
J J
carriage was about one-third full. He looked at his bag and saw a hand
K inserted under the flap of his cross-body bag. PW1 demonstrated how the K
hand was under the flap of his cross-body bag. His cross-body bag
L L
contained his wallet with his credit cards and cash, his keys, some
M documents and his I-Pad Pro, as well as another holder containing his M
identity card.
N N
O O
10. A person who said he was a police officer pushed the hand
P P
away – he described the male who had inserted his hand under the flap of
Q his cross-body bag to be wearing a green top, and he had a rather dark Q
complexion and was about 1.6 metres tall. He was not Chinese. Nor was
R R
the man in the white shirt.
S S
T 11. The police officer pushed the man in the green top to the T
U
middle of the carriage and also asked the man in the white shirt to come U
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over and he had them both sit in the seats and handcuffed them together.
C Others in the car who were not Chinese moved away to other carriages. C
D D
12. PW1 described another male who had also blocked him, but
E E
described his role as not being the main role – he was also not Chinese. He
F F
had been in the vicinity of the male wearing the white shirt. He had no
G
recollection of what happened to this third male. G
H H
13. At Cheung Sha Wan MTR Station, he, the police officer and
I I
the two arrested persons and two members of the public who had helped to
J guard the two arrested males all alighted. Other police officers came to J
assist and PW1 was separated from the two arrested males.
K K
L L
14. PW1 was shown photos 6 and 7 of Exhibit P1 and said these
M M
depicted the male he had described as the male wearing the white shirt who
N had blocked his way and had stood facing him and who was subsequently N
handcuffed by the police officer.
O O
P P
15. PW1 also said that the man in white was not in the group that
Q Q
pushed him from behind – he had rushed into the train ahead of PW1.
R R
S S
16. Under cross-examination, PW1 said when he gestured to the
T male in white to move, he had moved 1 step immediately. He was face to T
face with him and this person had not touched his bag. He did not see any
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words or gestures exchanged between the man in green and the man in
C white. He described the time as being between 3 to 5 seconds from the C
time he indicated with his finger for the man in white to move and he saw
D D
the hand under the flap of his cross-body bag, and during this period, he
E had not seen any exchange of words or gestures between the two men. E
F F
G
17. It was admitted that the two photos 6 and 7 of Exhibit P1 G
depicted D2 in these proceedings.
H H
I I
18. PW2 was Sergeant Yu Kin-shing, a police officer with some
J 22 years in the Police Force – he was PW5 in the list of Prosecution J
witnesses submitted. He was on patrol inside the MTR in plain clothes at
K K
the material time. His attention was drawn to a group of 6 to 7 persons that
L included 1 female and the rest were males. They kept chatting and looked L
at the personal belongings of people waiting to board the train. Whilst he
M M
observed them for some to 6 to 7 minutes, 2 or 3 trains arrived and left at
N N
both Platforms 1 and 2, but the group did not board the trains on either
O
platform. He informed his colleagues of his suspicions by mobile O
telephone. Suddenly a train arrived at Platform No. 1. Passengers boarded
P P
the train normally. The group moved all together to the door of one of the
Q carriages and boarded the same carriage through the same door. He moved Q
closer to observe the group. He saw that they only joined the queue to
R R
board the train when the persons at the front of the queue had started
S boarding. They all queued to enter the same carriage, They surrounded a S
male at the rear of the queue waiting to board. He said that he stood about
T T
2 feet behind the victim i.e. PW1, to his right. They walked slowly to board
U the train. PW2 described seeing a male in a white top at the right of PW1 U
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use his left hand to try to open the fastener of the cross-body bag carried by
C PW1 at his right side – when he did this, he was about 1 foot from PW2 and C
they were boarding the train. The male in the white top was unsuccessful
D D
in opening the fastener of the cross-body bag carried by PW1. The male
E then walked ahead of PW1 and deliberately walked slowly, preventing E
PW1 from going ahead. Someone at PW2’s left very quickly interposed
F F
himself between PW2 and PW1 and stood between them. As they were all
G very close together, PW2 moved to the right so as to be able to see what G
might be done. He saw this person use his right hand to try to unfasten the
H H
fastener on the cross-body bag carried by PW1 but he was unsuccessful.
I This male turned his head to his left to look at another male at his left. At I
this point of time, they had almost boarded the train. He heard these two
J J
persons talking to each other in a language he did not understand. The
K male at the left interposed himself in front of PW2 and took out a black K
re-usable bag, Exhibit P6, from the bag he was carrying – this male wore a
L L
green top, (and is D1 in these proceedings).
M M
N N
19. PW2 described the first male who had unsuccessfully tried to
O open the fastener as wearing a short sleeved garment made of a soft fabric O
with a collar and buttons at the front and he did not wear glasses. He
P P
thought this male had walked to the left of PW1 ahead of him after he had
Q unsuccessfully tried to open the fastener. Q
R R
S 20. The second male who had unsuccessfully tried to open the S
fastener with his right hand also wore a short sleeved white shirt with a
T T
collar and buttons at the front. He carried a bag on his shoulder and he wore
U U
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glasses. He had spoken to D1 after he had unsuccessfully tried to open the
C fastener. C
D D
21. PW2 described how D1 took out Exhibit P6 from the bag he
E E
was carrying and held it in his left hand to cover PW1’s bag and then
F F
reached his right hand under the flap of PW1’s bag. When he did this, the
G
male with the glasses was on the left of PW1, very close to him – while he G
thought the male without glasses was in front of PW1 but he did not pay
H H
much attention to him. When D1 inserted his hand under the flap of PW1’s
I
bag, they were all inside the train carriage. PW2 immediately shouted I
‘police’ and grabbed D1 with his right hand, and the male wearing glasses
J J
with his left hand. He did not notice where the man without glasses was as
K there were other people pressing around him. He spoke to PW1 and told K
him someone had tried to steal from him and to check his bag. PW1 also
L L
said he saw it. They then took the 2 males to the seats for them to sit down
M and he handcuffed them because they did resist. PW2 sought assistance M
from PW1 and other passengers. At Cheung Sha Wan MTR Station, PW2
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alighted with the 2 males, D1 and the male in glasses in the white shirt,
O together with PW1 and 2 other passengers who assisted to guard the 2 O
males, where they were joined by other police officers. PW1 told him he
P P
had checked his bag and nothing was missing. PW2 identified D2 to be the
Q second male who had tried unsuccessfully to open PW1’s bag. He also Q
confirmed that photos 6 and 7 of Exhibit P1 were photos of D2 and what he
R R
was wearing at the time of his arrest. He confirmed too that in the photos
S D2 was not wearing his glasses, he could not explain why. In response to a S
question from the Court, PW2 said that D2 had his back to PW1 until after
T T
he had apprehended both D1 and D2.
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22. PW2 drew 2 sketches that were produced and marked as
C Exhibits P7 and P8 respectively. Exhibit P7 depicted the position of the C
group including PW1 (described as ‘VTM’), D1 (described as ‘green top’),
D D
D2 (described as ‘P1’), the other man in white who had no glasses
E (described as ‘WP’) and himself (described as ‘SGT’ – Exhibit P7 depicted E
their positions as they boarded the train when WP first tried unsuccessfully
F F
to open the fastener of PW1’s bag. Exhibit P8 depicted their position after
G they had entered the carriage, when D1 inserted his hand under the flap of G
PW1’s bag. ‘WP’ was no longer shown on this sketch as PW2 did not
H H
notice his position.
I I
J 23. I have carefully considered all the evidence adduced before J
K
me as well as the submissions of Counsel. I have borne in mind at all times K
that the burden of proof remains throughout upon the Prosecution to prove
L L
guilt beyond all reasonable doubt. D2 elected to remain silent. That was
M
his right and I inferred nothing against him for exercising that right. M
N N
24. The facts at issue rely upon the credibility of witnesses and
O O
the weight to be attached to evidence. The 2 Prosecution witnesses each
P gave their account of what happened at the material time. Neither was P
shaken in cross-examination. There are a number of discrepancies
Q Q
between the accounts of PW 1 and PW2, and in my view, these are material
R discrepancies. R
S S
T T
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25. PW1 described the role of the man who had blocked him – he
C had been wearing a white shirt with two chest pockets. He was not wearing C
glasses. He said that the photos 6 and 7 depicted that man.
D D
E E
26. PW2 identified D2 to be the man in the said photos. He said
F F
at the material time, D2 had been wearing glasses, and he could not explain
G
why the photographs of D2 taken at the police station were taken of him G
without his glasses.
H H
I I
27. PW1 said the man in the white shirt apprehended by PW2 had
J stood face to face with him throughout, while PW2 said that D2 stood J
between him and PW1 and had his back to PW1. PW2 said he had seen D2
K K
unsuccessfully try to open the fastener of PW1’s bag. If all along D2 was
L face to face with PW1 then could PW2 have seen him try unsuccessfully to L
open PW’s bag’s fastener. PW2 said he had seen D2 talking to D1, while
M M
PW1 had not seen any such exchange between the man in the white shirt
N N
and the man in the green top.
O O
P 28. PW1 said the man in white was already in the train in front of P
him when he boarded, while PW2 said that D2 moved from behind PW1 to
Q Q
the left front of PW1.
R R
S S
29. PW2 said he caught D1 with his right hand and D2 with his
T left hand, and there was some resistance from them, so he had them sit on T
the seats and handcuffed them. PW1 said PW2 caught D1 and had him sit
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on the seat, and beckoned the man in the white shirt to sit in the seat next to
C D1 and then handcuffed them. He did not describe any resistance. C
D D
30. There are material discrepancies between the two accounts.
E E
They are discrepancies I find I am unable to resolve. I do find the
F F
circumstances very suspicious and D2 to be very suspicious. But as I have
G
doubt, the benefit of the doubt must be to D2 and he is acquitted of the G
charge.
H H
I I
J J
Bina Chainrai
K Deputy District Judge K
L L
M M
N N
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P P
Q Q
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