HKSAR v. Maria Maninder Singh and Another

DCCC 747/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 747 OF 2015

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Reasons for Verdict

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1.The defendants face a joint charge of robbery. In the early hours of the morning of 2 May 2015 in a rear lane in To Kwa Wan, a young lady was robbed of her bag and its contents by two South Asian men. The victim, PW1, says she followed the robbers to a building in To Kwa Wan. A CCTV recording taken at that time shows two men climbing the stairs of that building. One holds a bag.

2.The two defendants were arrested on 4 May 2015.  They lived in a flat in that building which the victim had seen the robbers enter.  Inside the flat that they occupied some items that the victim said were in her bag were located.  There is no direct evidence of either defendants involvement in the robbery.

3.The prosecution say that the inference that the defendants committed the robbery can be drawn from the circumstantial evidence.  The defence say that this inference is not capable to be drawn against either defendant.  The primary issue at trial was whether any inference capable of showing either defendants’ involvement in the robbery was possible from the evidence produced by the prosecution.

4.PW1 was the victim.  At around 2.30 am on 2 May 2015, she was heading to her friend’s premises at 52A Ngan Hon Street in To Kwa Wan.  She was robbed by two men, a taller and a shorter man she described as having dark skin or South Asian.  After a struggle her bag and its content were taken.  The men ran away towards Wing Kwong Street.  She followed.  She saw them running to Hung Fook Street.  She saw the shorter man enter a building. She identified their location with a “X” on a map as 43 Hung Fook Street in Hung Hom.

5.She evidenced the items stolen.  Amongst them she identified a cosmetics bag and its contents and five Starbucks coupons as being in her bag at the time.  These items were recovered from a flat occupied by D1 and D2, at flat A, 5th Floor, 43 Hung Fook Street.

6.Police recovered the CCTV recording taken from a camera located in the mezzanine floor at 43 Hung Fook Street.  This was taken 0227 hours - actual corrected time, 3 minutes later, it should be 0230 hours on 2 May 2015.  It showed two males of South Asian appearance.  The first man held a bag and had tattoo marks on his right hand and right arm bicep.  They are both running up the stairs.

7.The two defendants were arrested on 4 May 2015.  D1 was observed to have tattoos, the same locations as the first man seen running up the stairs in the CCTV recording who held the bag.  D1 said he lived at the flat at 5A, 43 Hung Fook Street.  D2 was in possession of the keys to that flat.

8.The flat of 5A, 43 Hung Fook Street was searched.  A Hong Kong ID card application form in the name of D1, along with an application form 4 Public Housing and D1’s name was found in the flat.  D1 later admitted the Hong Kong ID card application form belonged to him.  Inside the lounge of the flat was found YSL cosmetics bag containing cosmetics.  Inside the bedroom which a police officer said D2 admitted was his bedroom, there were found five Starbucks coupons.  PW1 later identified the YSL cosmetics bag and its contents and the five Starbucks coupons as belonging to her.  She said that they had been inside the bag that had been stolen from her during the robbery.

9.As far as the defence evidence was concerned, neither defendant gave or called evidence.  No adverse inference can be drawn from this decision.

10.D2 has a clear record. He also referred to an earlier part of the CCTV recording of 2 May at around 2.30 am which show two men climbing the stairs.  It was submitted that one of the man was obviously D2.  There was no recording of D2 descending the stairs before 2.30 am or at all.

11.Both defendants face a single charge of robbery.  Prosecution say it is a joint enterprise by them. The prosecution is required to prove this charge beyond reasonable doubt.  The burden remains on prosecution at all times.  The prosecution must prove these defendants stole, and immediately or at the time of doing so used force on any person or sought to put any person of being then and there subjected to force.

12.The prosecution relies on the drawing of an inference.  Such inference must be the only reasonable inference that can be drawn.  The defendants are jointly charged, however the case against each defendant must be considered separately.  The 2nd defendant is of clear record is a relevant consideration, his propensity to commit the offence charged. 

The prosecution case

13.The prosecution say there is no doubt that PW1 was robbed and that she was robbed by two South Asian males.  They say that the following matters show that D1 and D2 jointly the committed the robbery.  Firstly, PW1 should be accepted to when she says she saw a robber enter 43 Hung Fook Street.  Her observations confirmed from the CCTV of the building which shows the two males running up the stairs of that building at exactly the right time.

14.Furthermore, the tattooed man shown in the CCTV must be D1 as he has tattoos in the same location as the man in the CCTV.  This man is shown holding the bag, and passed the contents of the bag, namely the cosmetics bag, and Starbucks coupons was found in the premises occupied by D1 and D2.  Taken together, and in the absence of any evidence that explains the presence of PW1’s belongings in that premises, then the inference can be drawn that D1 and D2 jointly committed the robbery.

15.D1 submits that PW1 was no doubt subjected to a robbery.  However, the most that one can conclude from her evidence is that she was robbed by two men with dark skin, one taller than the other, and they both ran away.  Her evidence on seeing a man enter 43 Hung Fook Street is not reliable and contradicts her earlier statement that the man seen in CCTV recording cannot therefore be inferred to be the robbers. 

16.Furthermore, the marks seen on right arm of the first man running up the stairs in CCTV recording cannot be concluded to be tattoos seen on D1’s arm, that the bag carried by that man cannot be concluded to be the bag stolen from PW1.  She was never asked to see CCTV or attempt to identify that bag that the items found in the flat which D1 occupied cannot be definitely to be said to belong to PW1’s.

17.The YSL cosmetics bag and cosmetics are commonplace and cannot be said definitely to be hers, certainly not to a criminal standard.  The Starbucks coupons are also commonplace there given away by the company.  Her evidence of these individual coupons were in her bag cannot be relied upon.  

18.Furthermore, there was evidence in the photographs taken of the flat that other people besides D1 and D2 had been present there.  For example, there was a woman’s shawl hanging up in the room suggesting a female presence.  Also in the bedroom there was what appeared to be an identity document which could not be the defendants as the police did not seize it.  Also there was evidence to when the police searched the flat other South Asian males were trying to gain entry to this place.

19.The 2nd defendant echoed these submissions saying they equally applied to him.  Also it was said that D2 could not be the man shown in the CCTV, or one of the men shown in the CCTV, at 2.30 am as that man did not resemble D2 in appearance and D2 could be seen on the CCTV earlier, that the only connection between D2 and the robbery was the finding of the cosmetics bag in the lounge of the flat and the five Starbucks coupons in the bedroom three days later.  Both items are unremarkable and commonplace and on their own could not be used to draw any inference against D2. 

20.Furthermore, the police evidence that D2 admitted that the bedroom where the five Starbucks coupons were found in his bedroom was unreliable.  It had never formed part of any statement.  It was uncautioned.  It only came out in cross‑examination.  A resolution of this issue was that these issues are as follows.

21.There is no dispute that PW1 - or there can be no dispute - that PW1 was the victim of a robbery. Her evidence on this is clear and completely reliable and also that the items she set out in her evidence were taken.  She describes the two men as South Asian and dark skinned.  She describes following them on these terms:

“I saw them running to Hung Fook Street. I followed them. I saw the shorter one enter a building. I am not sure which building I walked over there and heard a conversation like between South Asian people.”

22.She marked the location on a photograph on the map with a “X” at 43 Hung Fook Street.  She agreed in cross‑examination that she had said she saw the man run towards Wing Kwong Street.  The man who grabbed her had a black top and that she had lost sight of him.  She had said in her statement that the shorter man entered the premises in Wing Kwong Street.  PW1’s answers to these earlier statements was that she was not familiar with the street names and, in any event, she pointed out to the police the premises where the two men had entered.

23.Taking PW1’s evidence as a whole, it is clear that initially she was not clear as to description of the street name.  However, in court she was able to show the actual location pointed out to be 43 Hung Fook Street.  I found her identification of this location to being the location that the shorter man entered was reliable. Furthermore, this evidence is supported by the CCTV recording which shows two men running up the stairs carrying a bag at the location PW1 identified in her evidence and at the time she stated it happened, namely 2.30 am.

24.Her evidence on this is further confirmed by the finding of items from her bag in the premises at Flat A, in the same building, 43 Hung Fook Street.  I noted that PW1’s identification of the YSL cosmetics bag and its contents was questioned, along with the 5 Starbucks coupons that she said had been in her bag.  PW1 was able to identify the YSL bag because of its contents.  It had a number of cosmetic items that she had collected and placed in it.  These items are her choices and must be unique to her.  It is highly unlikely that anyone else would choose exactly the same cosmetics.

25.Similarly she identified the five Starbucks coupons by the fact they all bore on the same date which is 30 June 2015.  They had been given to her by a friend who worked at Starbucks who was able to source them.  Again, the possibility of another person acquiring five coupons on the same date is very remote.  I was prepared to accept PW1’s evidence that the YSL bag and its contents and the five Starbucks coupons were in the bag that was stolen from her.  The presence of these items also assist the court in drawing the inference that in the CCTV the first male shown is carrying the bag stolen from PW1. 

26.Having regard to the combination of PW1’s evidence, which I find reliable, the CCTV recording, and the presence of the items in Flat 5A, I draw a factual conclusion that PW1 having been robbed by the two men, followed them to 43 Hung Fook Street where they ascended the staircase and were caught on the recording by the CCTV camera.  The first man shown in the video is carrying PW1’s bag and that was the bag that she says was taken from her in the robbery, it being then taken to the Flat 5A where at some point over the next days - two days - the YSL cosmetics bag and contents and the five Starbucks vouchers were taken out and placed in the flat.

27.I find all these conclusions to be drawn beyond reasonable doubt and to be unassailable on the evidence provided. 

28.These factual conclusions are common to both defendants in the case against both defendants. But the defendants’ cases are separate.  In addition, in respect to the 1st defendant, there is the issue of the extent to which he is implicated by the CCTV recording.  From the recording it can be said on the scene that the first man has the same general appearance as D1.  He also has on the back of his right hand a pattern that is like a tattoo, and also a pattern like a tattoo on the upper part of the right arm, partly covered by the short‑sleeved shirt worn by the man. 

29.When the defendant was arrested there was evidence he was seen to have a tattoo on the back of his right hand and also a tattoo on his upper right arm.  When this is combined with the presence of some of the proceeds of the crime in premises admittedly occupied by D1, then this presents a compelling set of facts for which an inference contrary to this defendant can be drawn.

30.The defence say that the court must also consider the issue that PW1 said the shorter man who took the bag wore a dark top, and the man in the CCTV recording wears a light top. Secondly, there are also some evidence from the presence of other South-Asian males in the premises where the proceeds of crime were found. 

31.I consider the first factor can be discounted.  PW1 followed the man with the bag to 43 Hung Fook Street, saw him enter.  The timing of the CCTV and the fact that he holds the bag means it must be the same man.  Her observation of dark clothing is explained by the fact of her observation being made under trying circumstances and at night.

32.Finally, there may well be others present in flat.  But it must be the case that it was a tattooed man seen on the CCTV who brought the stolen items to the flat where the same were left in the lounge and bedroom. 

33.I find the connection of the defendant having tattoos in exactly the same locations as the first man in the CCTV, combined with his presence in the flat and the presence of the stolen goods, presents overwhelming a compelling evidence against him which is unanswered and unexplained.  It is clear, when cumulatively considered ample evidence to draw as the only available inference, that D1 and the robber are the same person.  I convict him accordingly.

34.The case against D2 is different.  I find, on perusal of the CCTV, that D2 does not bear a sufficient resemblance to the second man ascending the stairs.  There are no individual identifying factors as there are in D1’s case.  The CCTV appears to show a man much more similar to D2 ascending the stairs earlier at 2.30 am. 

35.The CCTV cannot connect D2 to the men on the stairs recorded to 2.35 am.  In fact, I find it excludes him as being one of those men.  The only evidence against him is his presence as an occupant to the flat where some of the stolen goods were found.  However, these are commonplace items.  I do not consider their presence only, given that D1 was also present, would provide a basis to draw the inference required against D2 that he was one of the robbers or was involved in the handling of the stolen goods.  So the charge against him will be dismissed.

36.The 1st defendant is convicted.  The 2nd defendant’s charge is dismissed.