HKSAR v. Singh Satnam Randhawa and Another

DCCC 404/2017

[2018] HKDC 352

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 404 OF 2017

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REASONS FOR VERDICT

1.D1 pleads not guilty to one joint charge of robbery, contrary to section 10 of the Theft Ordinance[1]. D2 pleaded guilty to the charge on the first day of trial.

Prosecution case

2.In summary in the early hours of 1 March 2017 Ms Hui Yin Fei was walking home alone when a Chinese male grabbed her neck from behind and declared robbery.  The Chinese male told Ms Hui to drop her phone on the ground and take out all her money.  Ms Hui was very frightened and dropped her phone on the ground.  When Ms Hui kicked her phone away she noticed another male, a foreigner, standing one to two meters away looking at her.  When Ms Hui took out some money from her wallet the Chinese male took the money.  The Chinese male then let go of her neck, picked up the phone and left together with the other male.  

3.With the help of a passer-by Ms Hui reported the case to the police.  The police arrived soon after and took Ms Hui on a police vehicle to look for the robbers.  Ms Hui identified two males who were outside Yuet Kwai House as the robbers.  The two males were D1 and D2. 

4.PC 18851 arrested D1. The prosecution rely on admissions made by D1 on arrest that he acted as a lookout, which admissions were post-recorded in PC 18851’s police notebook and later repeated in a video recorded interview.   

5.A search of D2 revealed a key to a letter box at Yuet Kwai House.  The police recovered Ms Hui’s mobile phone from the letter box.  CCTV footage shows that after the robbery D1 and D2 approached the letter box when D2 placed something inside the letter box while D1 waited next to D2. 

6.The prosecution case is that D1 acted as the lookout while D2 robbed Ms Hui. 

Defence case

7.The defence case in summary is that D1 did not know D2 was going to rob and did not act as a lookout.  D1 did not make any admissions on arrest and challenged the admissibility of the post-record and the video recorded interview. 

Evidence

8.The prosecution called three witnesses Ms Hui (PW1); PC 18851 (PW2) and DPC 13126 (PW3)[2], who conducted the video recorded interview. 

9.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[3], including the arrest of D1; the CCTV footage[4]; photographs[5] and the recovery of the stolen phone and money[6].

Defence evidence

10.The defendant elected to give evidence on both the special and general issues.  No witnesses were called on his behalf. 

11.Admitted in evidence is that D1 has a clear record[7]. I direct myself as to good character of D1 in accordance with the decision in HKSAR v Tang Siu Man[8].

12.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

13.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

14.I have carefully considered all the evidence and the submissions of Mr Richmond and Mr Davies. 

Prosecution evidence

15.The alternate procedure was adopted. I will first summarise the prosecution evidence.

Robbery

16.Ms Hui testified that at about 12:15 a.m. on 1 March 2017 she took a bus to go home. Ms Hui alighted from the bus at Tin Shui Wai at about 01:05 a.m. Ms Hui then walked home.  After walking for about ten minutes and almost reaching home, all of a sudden a male from behind put his arm around her neck and in Cantonese declared robbery.  Ms Hui described this male as Chinese looking.

17.The male then told Ms Hui to take out her phone and drop the phone on the ground. At the time Ms Hui was listening to music on her headphones attached to the phone.  After removing her headphones Ms Hui dropped her phone on the ground and kicked the phone away.  As she was doing this Ms Hui turned her body and noticed another male 1-2 meters behind her standing and looking at her. 

18.Ms Hui said this male was a foreigner but was unable to tell what nationality he was. At the end of her evidence Ms Hui said that she thought he was someone who was passing by and would be able to help her but he did not help and just stood there looking at her and seeing everything that was happening.  

19.In cross-examination Ms Hui agreed she was very frightened when her neck was grabbed from behind.  Ms Hui disagreed that she could not clearly see the male standing behind her and disagreed that this male was further than 1-2 meters away when she saw him.  Ms Hui agreed she could smell alcohol on the Chinese male but not on the other male because he was too far away. 

20.The Chinese male continued to grab hold of Ms Hui’s neck tightly and told Ms Hui to take out all her money.  Ms Hui took her wallet from her bag and took out a $100 banknote which the Chinese male took from her hand.  When the male asked for more money Ms Hui took out two Renminbi banknotes which the Chinese male also took from her hand. 

21.The Chinese male then let go of Ms Hui and picked up the phone.  The two males then left together walking slowly in the direction of Tin Yuet.  In cross-examination Ms Hui agreed all the other male did was standing and watching and that he walked away calmly together with the Chinese male. 

Arrest

22.Ms Hui was very frightened and intended to leave when she saw a young man walk over from the Light Rail station.  Ms Hui ran over to the male telling him she had just been robbed and asked to borrow his phone to call the police.  Ms Hui then rang 999. 

23.Admitted in evidence is that PC14101 together with other colleagues arrived at the Wetland Park Road in patrol car EU83 at 01:30 hours where they met Ms Hui[9].  PC 18851 testified that he arrived in a different patrol car at 01:40 hours. 

24.Admitted in evidence is that at 01:45 hours PC 14101, together with Ms Hui, drove around the area to look for the two robbers[10]. PC 18851 testified that he also went to search the neighbourhood for the robbers in a different patrol car. 

25.At 02:00 when PC 18851 passed the ground floor of Yuet Kwai House he saw two suspects who matched the descriptions given by the console and by Ms Hui.  PC 18851 therefore went to make enquiries with the suspects.  PC 18851 looked at their identity cards and learnt their names were Singh Satnam Randhawa and Chow Wai Lung, the names of D1 and D2.  PC 18851 referred to D1 by his Chinese name Lam Hoi Fung.  PC 18851 asked D1 in Cantonese why he was there.  D1 replied in Cantonese that he had been drinking with his friend and just went there[11].

26.Admitted in evidence is that at 02:05 hours EU83 arrived outside Yuet Kwai House[12].  Ms Hui saw the two males who she recognised from their clothing and appearance as the two robbers.  Ms Hui told the police they were the two robbers. 

27.PC 18851 testified that PC 14101 told him that Ms Hui had identified the two suspects as the robbers.  PC 18851 then continued with his enquiries with D1, including searching D1 to see if he had on him the phone stolen in the robbery.  Nothing suspicious was found on D1 which led PC 18851 to believe D1 may have hidden the phone in the vicinity of Yuet Kwai House. 

28.While searching the vicinity D1 suddenly said, “Ah Sir, in fact the whole incident was done by him.”  PC 18851 told D1 to repeat what he said clearly.  D1 said, “He was responsible for snatching. I was only acting as a lookout”.  When saying this D1 was pointing to D2. 

29.PC 18851 having sufficient evidence arrested D1.  Admitted in evidence is that at 02:22 hours on 1 March 2017 PC 18851 arrested the defendant for robbery[13].  PC 18851 testified that he cautioned the defendant.  Under caution the defendant replied, “He was responsible for snatching.  I was only acting as a lookout.”

Recovery of the phone

30.Admitted in evidence is that on a search of D2 the police found a key and the money stolen in the robbery.  With the key the police recovered Ms Hui’s phone from a letter box[14]. Admitted in evidence is CCTV footage showing that after the robbery D1 and D2 approached the letter box when D2 placed something inside the letter box while D1 waited next to D2[15].

Tin Shui Wai Police Station

31.Admitted in evidence is that at 03:06 hours PC 18851 and D1 arrived at the Tin Shui Wa Police Station where the case was reported to the Duty Officer[16].  PC 18851 testified that after arriving at the police station the case was reported directly to the Duty Officer after which D1 was kept in the custody of the Duty Officer.  PC 18851 then made a post-record of the arrest.  Admitted in evidence is that PC 18851 made the post-record in his police notebook between 03:15 and 03:25 hours[17].

32.Admitted in evidence is that between 04:15 and 04:20 hours PC 18851 served a Notice to Persons in Custody to D1 (exhibit P1)[18]. PC 18851 testified that in the presence of his cousin Miss Wong Man Yau he read over the content of the notice to D1.  D1 had no request to make.  D1, Miss Wong and PC 18851 all signed the notice.  

33.PC 18851 then immediately read over the post-record to D1.  Admitted in evidence is that at 04:20 hours, in the presence of Miss Wong, PC 18851 read the post-record to D1 (exhibit P2)[19]. PC 18851 testified that D1 also read the post-record after which PC 18851 invited D1 to copy down a declaration if there was no alteration, correction or addition to make.   D1 then wrote out the declaration and signed the post-record.

34.After the post-record was completed PC 18851 photocopied the documents and gave copies to D1.  D1 was then handed back to the custody of the Duty Officer. 

35.PC 18851 testified that he did not nor did anybody else in his presence offer any promise, threat or inducement to D1 to say anything at the scene of arrest or to sign the post-record. 

Video recorded interview

36.Admitted in evidence is that between 19:50 and 20:00 hours DPC 13126 served a Notice to Persons in Custody to D1 (exhibit P3) in the presence of D1’s mother[20].  DPC 13126 testified that he read over the content of the notice to D1 and let D1 read the notice himself. D1 had no request to make.  D1, his mother and DPC 13126 all signed the notice.  

37.In the presence of D1’s mother DPC 13126 immediately commenced the video interview.  Admitted in evidence is that at between 20:01 and 21:02 hours DPC 13126 and DPC 9461 conducted a video recorded interview (exhibit P6)[21]. 

38.DPC 13126 testified that he did not nor did anybody else in his presence offer any promise, threat or inducement to D1 to participate in the video recorded interview or answer any questions. 

Voir dire

39.Guided by the decision in HKSAR v Okafor[22]as applied in HKSAR v Ip Chun Yin[23]these are my reasons for ruling the post-record and the video recorded interview admissible in evidence.

40.The defence objected to the admissibility of the post-record on the grounds that the defendant was threatened and induced by PC 18851 into signing the post-record as particularised in the written grounds of objection[24].  The defence objected to the admissibility of the video recorded interview on the grounds that D1 was still affected by the threats and inducements made by PC 18851.

Defence evidence

41.In summary D1 testified that on arrival at the Tin Shui Wai police station PC 18851 took him into a room near the report room where he asked him questions about the case such as whether he participated in the case and whether he acted as a lookout.  D1 did not answer any of the questions asked by PC 18851.  PC 18851 then started writing something in a book but D1 could not see what PC 18851 was writing.

42.D1 told PC 18851 he had a headache and asked for some Panadol.  D1 also said he wanted to call his friends and family.  PC 18851 told D1 to be cooperative and sign his name and then he will allow him to call his friends.   D1 then signed but could not remember what he signed. 

43.After signing D1 was allowed to make a call.  D1 called his friend Miss Wong Man Yau and asked her to come to the police station to bail him out.  D1 could not remember the phone number of Miss Wong and was allowed to access his phone to retrieve the number of Miss Wong. 

44.After Miss Wong arrived D1 was asked to sign a small book.  D1 did not read what was in the book and PC 18851 did not read the content to him.  D1 signed the book because at the time he was drunk and had a headache and wanted to get it over and done with and get his friends to bail him out. 

45.When the video recorded interview was conducted D1 said he still had a headache and was very tired. 

Discussion

46.I carefully considered all the evidence and the submissions of Mr Richmond and Mr Davies.  I considered the admissibility of the post-record and the video recorded interview separately. 

47.The issue was one of credibility.  I had no hesitation in rejecting D1’s evidence. I did not find his evidence credible.  The rejection of the defence evidence was not determinative of admissibility.  The burden of proving admissibility was on the prosecution to prove beyond reasonable doubt. 

48.Having carefully considered all the evidence I was satisfied so I was sure that the police officers were witnesses of truth who gave credible and reliable evidence.  I was satisfied so I was sure D1 was not threatened, induced or made any promises. 

Post-record

49.I did not find credible D1’s evidence that the post-record was not read to him by PC 18851.  This was inconsistent with the admitted facts that the post-record was read over to him by PC 18851[25].

50.Further, D1 did not give evidence in support of the ground of objection that PC 18851 told him no judge would believe he was not involved and that if he admitted acting as a lookout there was a chance the court will impose a binding over[26]. 

51.In cross-examination D1 said he was told by PC 18851 if he cooperated and signed he could get someone to bail him out.  I did not find this evidence credible. Further, the grounds of objection did not include that D1 was promised bail if he cooperated.   

52.Mr Davies submitted that PC 18851 was an unreliable witness because in cross-examination he said he was unable to remember if he told D1 he was going to prepare a post-record which he needed D1 to sign and that it would be better if D1 called a relative. 

53.The fact PC 18851 could not remember these matters did not cause me to doubt his evidence.  I accepted the evidence of PC 18851 that he did not nor did anybody else in his presence promise, threaten or induce D1 to sign the post-record. 

54.Having carefully considered all the evidence and the submissions made I found I was satisfied beyond reasonable doubt that the post-record was signed by D1 voluntarily.

55.In reaching this finding I considered the evidence of PC 18851 that he was told Miss Wong was the cousin of D1 whereas D1 said she was his friend. 

56.I accepted the evidence of PC 18851, given in cross-examination, that D1 told him Miss Wong was his cousin.  In the post-record PC 18851 has recorded that Miss Wong was the cousin of D1.  I found inherently improbable that if PC 18851 was told Miss Wong was a friend he would have written down she was the cousin of D1.

57.This evidence did not cause me to doubt that D1 signed the post-record voluntarily.

Video recorded interview

58.PC 18851 was attached to Patrol Sub-Unit 3, Uniform Branch, Tin Shui Wai whereas the video recorded interview was conducted in the Yuen Long police station by police officers from Yuen Long District. 

59.D1 did not give evidence in support of the ground of objection that at the time of the video recorded interview he was still affected by the threats and inducements previously made by PC 18851[27]. As noted earlier all D1 said was that he still had a headache and was very tired. 

60.D1 however made no complaint to DPC 13126 and in the video recorded interview said he consented to the interview; he was aware of his rights; he did not need a lawyer; he had no requests including drinking, eating or going to toilet; and that after being cautioned said he wanted to answer questions[28].

61.I accepted the evidence of DPC 13126 that he did not nor did anybody else in his presence promise, threaten or induce D1 to participate in the video recorded interview or answer any questions. 

62.Having carefully considered all the evidence and the submissions made I found I was satisfied beyond reasonable doubt that the video recorded interview was given by D1 voluntarily.  

63.In reaching my findings I carefully considered the submissions of Mr Davies.  Nothing said by Mr Davies caused me to doubt that the post-record was signed voluntarily and that the video recorded interview was given voluntarily. 

Discretion

64.At all times D1 was made aware of his rights.  In addition,  although the Rules and Directions for the Questioning of Suspects state that as far as practicable, children and young persons under the age of 16 should only be interviewed in the presence of a parent or guardian[29], D1 who was 16 at the time and not under 16, was accompanied by an adult. 

65.D1 was served two Notices to Persons in Custody.  First, in the Tin Shui Wai police station in the presence of his cousin prior to the post-record and second, in the Yuen Long police station in the presence of his mother prior to the video recorded interview.  In the video recorded interview D1 confirmed he had received the notice[30]. Further, D1 was cautioned at the beginning of the video recorded interview and said he wanted to answer the questions[31].

66.Applying the principles established in HKSAR v Lam Tat-ming[32]I found no grounds to exercise my discretion to exclude from evidence the post-record or the video recorded interview on the grounds of unfairness.

Oral statements

67.The written grounds of objection also stated that the defence objected to the admissibility of oral statements attributed to the defendant by PC 18851 on the grounds that the words alleged were not said[33]. Whether or not oral statements were said is a matter of fact.  No allegation was made that statements attributed to D1, if said, were involuntary.  I was satisfied beyond reasonable doubt that the oral statements attributed to D1 by PC 18851, if said, were said voluntarily.   I found no grounds to exercise my discretion to exclude the oral statements on the grounds of unfairness. 

General issue/Robbery

Defence evidence

68.In summary D1 testified that he had known D2, who he called Ap Tsui Lung[34], for about one year.  D1 came to know D2 because D2 frequently passed by where he lived.  D1 and D2 lived in Tin Yuet Estate.  D2 lived in Yuet Kwai House and D1 in the next block Yuet Fu House.

69.D1 would meet D2 about once a week when D2 would ask D1 to join the triad society, D2 being a member of Shing Wo triad society.  D1 did not agree to join and would try to avoid D2 except when he was unhappy when he would go out with D2 to drink alcohol in Yuen Long.    

70.On the night of 28 February 2017 D1 had an argument on the phone with his girlfriend. D1 was very unhappy and therefore agreed to go out with D2 when D2 sent him a message asking him to go out for a drink.  D1 met D2 and together with D2’s friends took a taxi to Yuen Long.

71.While in Yuen Long D1 drank four to five bottles of alcohol.  At about 12 to 12:30 together with D2 he took the Light Rail back to Tin Shui Wai.  D1 said he was very drunk. 

72.D1 and D2 alighted at Tin Wing station and walked to where they lived.  D1 followed D2 all the way to near Wetland Park when D2 asked D1 for his jacket because he was very cold.  D2 then rushed over to a girl, grabbed the girl and said robbery. The girl gave a $100 note and dropped other money on the ground.  D2 also asked for the girl’s phone.

73.D1 estimated he was about 10 meters from D2 when D2 robbed the girl[35].  After taking everything D2 slowly walked back to where D1 was.  D1 did not know how to react because he was very frightened by what D2 did. 

74.D1 did not know D2 was going to rob the girl; did not agree to act as a lookout; was not asked by D2 to act as a lookout and did not act as a lookout. 

75.After the robbery D1 followed D2 to Yuet Kwai House where D2 put the phone in a letter box.  D2 then told D1 to sit in the park near to where they lived.  D1 said at the time he was shaking, frightened and drunk. 

76.Within five to ten minutes a police vehicle arrived.  Police officers ran over to them.  On seeing the police D1 did not try to run away.  The police first questioned D2.  PC 18851 then pulled D1 to one side to check his identity card. 

77.A second police vehicle arrived.  The girl who D2 robbed was on board the vehicle. From the vehicle the girl identified D2.  After PC 18851 talked to another police officer PC 18851 told D1 that the girl had identified him as the person who was acting as a lookout.  D1 immediately said it had nothing to do with him; he did not do anything; did not know what happened and that D2 was the one who robbed the girl. 

78.D1 and D2 were then handcuffed and taken on board the police vehicle.  After recovering the phone from the letter box D1 and D2 were taken to Tin Shui Wai police station. 

79.PC 18851 did not arrest or caution D1 and only said that D1 committed robbery and had to be taken to the police station.  D1 was never cautioned and never said he acted as a lookout.  D1 adopted his evidence on the voir dire about what happened after he arrived at the Tin Shui Wai police station.

Discussion

80.I have carefully considered all the evidence and the oral and written submissions of Mr Richmond and the oral submission of Mr Davies. 

81.I have no hesitation in rejecting D1’s evidence.  I do not find D1’s evidence credible, for example I do not find credible D1’s evidence that he did not know D2 was going to rob the girl.  In the video recorded interview D1 said that after leaving the train D2 found a girl with a bag who they followed for about fifteen minutes; D2 asked him to steal; and having spotted the girl D2 told D1 to walk faster[36].

82.D1 testified that they followed the girl for about ten minutes.  I do not find credible D1’s explanations given in cross-examination and in answer to the court as to why he followed the girl instead of going home.  In cross-examination D1 said he did not go home because D2 asked him to follow him explaining that he was afraid D2 might cause trouble to his family. 

83.In answer to the court D1 said that when he took the Light Rail he intended to go home.  D1 explained that he got off at Tin Wing station and not Tin Yuet station, which was the nearest station to his home, because D2 asked him to follow him and because he was still very unhappy he did not go home. 

84.From Tin Wing station to near Wetland Park where the robbery took place required D1 to walk past his home.  Asked by the court why he did not go home D1 repeated his answer given in cross-examination that he was afraid D2 would do something to harm his family and so he had to follow him.   

85.Asked by the court why he went out with someone he was afraid would harm his family D1 replied that on that day he was really unhappy and that he did not go out with someone who he was not frightened of because they did not drink and were good students who normally stayed at home reading books and playing computer[37]. 

86.I have no hesitation in rejecting these explanations.  It beggars belief that D1 would go out drinking with someone he said he tried to avoid and who he was afraid might harm his family. 

87.I remind myself that the rejection of D1’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. 

88.I am satisfied so I am sure the prosecution witnesses are honest and reliable witnesses upon whose evidence I can safely rely. 

89.I am satisfied so I am sure that Ms Hui was robbed and that at the time of the robbery D1 was standing 1-2 meters away acting as a lookout while D2 committed the robbery. 

90.I accept the evidence of PC 18851 that when he was searching the vicinity for the stolen property D1 suddenly said, “Ah Sir, in fact the whole incident was done by him”; and that when PC 18851 told D1 to repeat what he said clearly, D1 said, “He was responsible for snatching. I was only acting as a lookout”.  I accept the evidence of PC 18851 that he then arrested and cautioned D1 and that under caution D1 replied, “He was responsible for snatching.  I was only acting as a lookout.”

91.I am satisfied full weight is to be attached to the admissions made by D1 at the scene of arrest, both before and after caution, that he acted as a lookout, which admissions were acknowledged by D1 when signing the post-record[38].  I am satisfied full weight is to be attached to the admissions in the video recorded interview that D1, knowing that D2 was going to steal from the girl they had followed for about fifteen minutes, acted as a lookout while D2 committed the robbery[39]. 

92.In reaching these findings I have carefully considered that in the video recorded interview the defendant said that he never touched the money[40]; never discussed how to handle the robbed phone and money[41]; did not know the reason for the robbery[42]; before D2 committed the robbery they did not discuss the robbery or whether D1 was to be responsible for acting as a lookout[43]; when D2 asked him to steal D1 said he did not want to do that[44]; and that he never touched the phone only the phone case[45].

93.Having looked at the video recorded interview as a whole these answers do not cause me to doubt that D1 acted as a lookout knowing that D2 was going to rob the girl. At counters 91-94 D1 clearly states that D2 was responsible for snatching and that he acted as a lookout and at counters 111-114 said that to act as a lookout was to see if there was anyone walking past. 

94.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Davies both individually and collectively; including that Ms Hui only saw D1 standing and looking at her; the defendant never touched the money or picked up the phone; D1 did not try to run away after the robbery and instead walked away calmly; there is no evidence D1 got anything from the robbery and that at the time D1 was clearly under the influence of alcohol.  Nothing said by Mr Davies causes me to doubt the findings I have made.

95.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  D1 is convicted as charged.