HKSAR v. Li Man Lap, Otis and Another

DCCC 305 & 656/2020 (Consolidated)

[2021] HKDC 247

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 305 & 656 OF 2020

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REASONS FOR VERDICT

Procedural History

D1 and D2 are jointly charged with an offence of "Robbery". This case was originally fixed for trial on 27 October 2020 (with 4 days reserved). D2 pleaded guilty to the charge before me and indicated his willingness to assist the prosecution. Time was taken to obtain his non-prejudicial statement. In view of the new development, on 28 October 2020, I refixed D1's trial to 4 January 2021 (with 6 days reserved).

2.On 4 January 2021, D1 pleaded not guilty to the charge.  This trial is about D1 only.

The Prosecution Case

3.The robbery took place at a storage site situated near the junction between Scenic Road and Chek Lap Kok South Road on Lantau Island ("the Site").  It was occupied by Leighton Contractors (Asia) Limited ("Leighton") for storage of materials and equipment to be used for works carried out at the airport.

4.Mr. Hikmat (PW1) was a night security guard posted at the Site.  Around 3:00 to 4:00 a.m. on 5 October 2019, he was on duty alone in the container office[1].  Suddenly, 2 males came into the office.  One of them, who was wearing a black face mask, sprayed something in PW1's eyes, causing him to lose his vision temporarily.  They asked PW1 for the keys to the main gate, which he did not have.  They then assaulted him and tied up his hands and feet with plastic straps.  After a while, PW1 heard the sound of a truck coming into the Site.

5.About an hour later, PW1 freed himself and called his company and the Police.  PW1 said he understands Chinese.  He claimed that he heard 3 to 4 voices speaking Chinese in the office, such as you do what and I do what.  After the incident, PW1 found $7,000 cash missing from his bag.  PW1 was sent to the hospital on the same day.  He was found to have tenderness over his bilateral lower chest wall and upper abdomen, and loosening of his right upper molar[2].

6.Mr. Chung (PW3) was a self-employed crane lorry driver.  On 4 October 2019, he received an order from a mobile app named Rent Easy[3]. The order came from someone named Li On-fai ("Li") with phone number   6538 5934, a pre-paid SIM card the user particulars of which were unknown[4]. PW3 said the message of the order reads "To hoist cables at night". He was asked to be at Tung Chung at 5:00 a.m. on 5 October 2019 and then deliver goods to Yuen Long.  PW1 negotiated the terms and price of the job with Li and received a deposit paid into his bank account[5].

7.Upon arriving at Tung Chung, PW3 called Li and was told that Li's colleague would get in touch with him.  Shortly afterwards, someone called PW3 and told him where to go to pick up the caller.  PW3 drove to the location specified by the caller and picked up D1 there.  D1, who was wearing a reflective vest, boarded the truck and directed PW3 to the Site.  PW3 confirmed that it was not D1 who opened the main gate of the Site.  He agreed that the main gate was opened by a male, aged 30 to 35, wearing a black T-shirt with a big belly.  PW3 also agreed that the same fat man gave him instructions to lift 2 drums of cable onto his truck.  That fat man asked PW3 to deliver the cables to Kam Tin and instructed D1 to go with PW3.

8.After loading 2 drums of cable onto the truck (which took about an hour with the help of D1 and a male wearing glasses), PW3 drove to Fuk Hi Street in Yuen Long with D1 riding along.  They arrived shortly before 7:00 a.m. and waited there for about 30 minutes.  Around 7:30, 2 private cars arrived.  One car was a 7-seater with 2 males on board.  A male alighted from that car and asked PW3 to follow his car.  PW3 followed the 7-seater to a recycle yard nearby.  The other car (KX 9016) had 1 male and 1 female on board; they opened the gate of the recycle yard.  The male who asked PW3 to follow his car paid PW3 cash for his service. PW3 asked D1 to leave his particulars for record and D1 allowed PW3 to take a photo of his ID card[6]. PW3 left the recycle yard after unloading the cables.

9.Mr. Ho (PW2) is a foreman employed by Leighton.  He was responsible for keeping stock stored at the Site.  On 5 October 2019, PW2 arrived at the Site within 30 minutes after being asked by the Police.  He found 2 drums of "Ducab" brand cable missing; their total value was $800,000.  He also identified the 2 drums of "Ducab" brand cable delivered to the recycle yard by PW3 as properties stolen from the Site[7].

10.Madam Tseung (PW4) was an employee of the recycle yard in question ("the Yard").  She received a phone call on 4 October 2019 offering to sell cables to the Yard[8]. She also received photos of the cables from the caller.  She informed the caller that she had to see the goods in person before she could give him a quotation on the price.  They agreed to meet at the Yard around 6:30 a.m. on the following day.

11.PW4 and her boss (Mr. Yu) arrived at the Yard as scheduled in a private car (KX 9016).  The truck driver (i.e. PW3) was already waiting outside the Yard when they arrived. PW4 said there was another private car waiting as well.  She opened the gate of the Yard and told PW3 where to unload the goods.  PW4 saw 2 males (one taller and fatter; the other shorter and smaller) standing together when they watched PW3 unloading the goods.  Afterwards, those 2 males followed PW4's boss to obtain payment.  Mr. Yu paid them $10,000 first since insufficient cash.  PW4 recalled having seen the taller and fatter male paying the truck driver.

12.About 3:00 p.m. on the same day, PW4 received a phone call about the balance of the payment for the 2 drums of cable.  She told the caller to come collect it. There is no dispute that D1 went to the Yard to collect $70,000 odd from PW4. PW4 recorded the details of D1's ID card and D1 signed on a receipt[9].  PW4 confirmed that D1 is the shorter and thinner male she was referring to in her evidence.  She agreed that D1 remained outside the office at all times when the other male went inside to collect the initial payment from her boss in that morning.

13.D2 (PW7) gave evidence for the prosecution.  He is now 22 and worked as a chef prior to his arrest.  He holds an associate degree.  D2 claimed that he met D1 at a social gathering held at a bar in Tsim Sha Tsui one month prior to the offence.  They exchanged phone numbers then but had no further contact.

14.According to D2, he received a call from D1 on 4 October 2019 telling him that there was work available at a construction site.  D1 asked him if he would take the job and D2 replied yes.  D2 said D1 told him that the job was $1,000 and asked him to meet D1 at Tsuen Wan West MTR Station at midnight the same evening.  There, D2 met up with D1 and 2 unknown persons (Males A and B).  D1 told D2 that they would go to a construction site to move some things.

15.In gist, D2 claimed that he only acted as a lookout in the vicinity of the Site.  Shortly after the arrival of the crane lorry, D2 was asked by Male A to enter the container office.  He only took one step into the office and was blocked by Male B.  D2 was given some documents quickly and was pushed out by Male B.  D2 then handed those documents to D1.

16.After the truck had left the Site, Male A told D2 to close the main gate.  After closing the gate, Males A and B said to D2 "It's done.  You can leave."  D2 then left the Site with them in their private car.  D2 said before D1 left the Site, he told D2 that D2 would not get paid on that day.  D2 claimed that he has not received any payment so far.

17.The prosecution also called DSPC 58673 (PW5) and PC 20696 (PW6) to cover search and seizure of Exhibit P12 from D1; the arrest of D1; and the house search conducted at his home.

18.D1's video recorded interview ("VRI"), its transcript and certified English translation (Exhibits P78, P78A and P78B) were produced by agreement of both parties.

The Defence Case

19.D1 elected not to give evidence or call any defence witness. This is his right; I drew no adverse inference against him in this regard.

20.A 2^nd set of Admitted Facts (Exhibit D3) was produced as part of the defence case.

Assessment and Analysis of Evidence

21.The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt. Regarding the element of dishonesty, I have directed myself according to the Ghosh principles.

22.I am aware that D2 is an accomplice witness and that his sentence depends on his performance in the witness box. I have reminded myself of the dangers in relying on his evidence.

23.The defence has practically admitted the bulk of the prosecution case. The defence does not dispute that D1 boarded PW3's truck and directed him to the Site; D1 accompanied PW3 during the journey from the Site to the Yard; D1 allowed PW3 to photograph his ID card; and D1 collected the balance of the selling price of the cables from PW4.

24.Robbing a construction site in the early hours is very different from robbing a bank during office hours. It is common knowledge that there would be people such as customers, bank employees and security guards at a bank during office hours and that they would normally be scared when one or more culprits declare robbery. On the other hand, one may not expect there would be a security guard on duty at a site used by a construction company for storage. At least it may not be the only reasonable conclusion to be drawn. In other words, in the present case, in order to establish the "Robbery" charge against D1, the prosecution must prove beyond reasonable doubt that at the time of the offence, he knew that PW1 was treated with violence; or he expected that he or one of his accomplices would use force on any person or would put or seek to put any person in fear of being then and there subjected to force.

25.At present, no witness was able to say that D1 had entered the container office at the Site. Even according to his own words, D1 said in his VRI that he went to the site office to check in, a fat man with glasses stood at the door; handed him a helmet and a reflective vest; pushed him out and told him to go to the bus stop to deal with the crane lorry[10]. There is no evidence showing D1, at the time, had any knowledge of the existence of PW1, needless to say the fact that he was sprayed in his eyes, assaulted and tied up. I have already expressed my views on the expectation of encountering any security guard at the Site. Even if one contemplates that a night guard may be posted at the Site, it does not mean one would also contemplate that the night guard may be subdued or put in fear of being then and there subjected to force. The stealing of properties from the Site may very well take place without alerting the night guard or treating him/her with violence.

26.I need not delve into the evidence of D2, suffice it to say I agree with D1's counsel Mr. Sherry that D2 is not a credible or reliable witness. Mr. Sherry's analysis of D2's phone records shows that his role in this case is not as limited as he portrayed in the witness box. D2 had multiple telephone calls with someone whose fingerprints were found on the inside and outside of the door of the container office at the Site.

27.I also agree with Mr. Sherry that even if taken to its highest, D2's evidence is only capable of proving that he was recruited by D1. D2 was unable to say anything about D1's knowledge of PW1's existence at the Site or having been subject to violence in the container office. Without such evidence, the "Robbery" charge against D1 cannot be established.

28.D1 has explained in his VRI how he was recruited by "Yu Chai" (a.k.a. "Ah Yu") to do the "moving job" at the Site and that he did not sense anything improper or unusual about what he did. As a juror, I do not find his explanation credible. As a worker for HKTVmall, why would D1 suddenly be recruited to do a construction-related job? If huge objects had to be removed from a construction site, there must have been construction workers who could do the job. Why ask D1, who is completely inexperienced, out of the blue? Did these questions pop up in D1's mind? If they did, D1 must have sensed something was wrong. If they did not, D1 must have turned a blind eye to an obviously crooked situation.

29.Once he arrived at the Site and after being told what to do, D1 should have and must have realized that a stealing act was taking place. I make this finding of fact as a juror. Common sense tells us that it is extremely odd to pick up 2 drums of brand new cable in the early hours and then sell them to a junk yard. I have no doubt that D1 knew that his syndicate was stealing the cables under such circumstances. This is an irresistible inference to be drawn based on the evidence before me.

30.Based on the reasons stated above, I find D1 not guilty of "Robbery" but guilty of "Theft".