HKSAR v. Shehoza Vicent Kennedy and Another

DCCC 371/2022

[2023] HKDC 1111

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 371 OF 2022

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REASONS FOR VERDICT

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1.Both defendants pleaded not guilty to a charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.

2.The prosecution case consisted of: -

(a)  admitted facts that: -

(i)  both D1 and D2 were from Tanzania, they were both Form 8 holders.

(ii)  at around 4:10 am on 4 December 2021, PW3 and PC25358 declared arrest on D1 and D2 respectively at D’Aguilar Street, Central, near to the lamppost 38355.

(iii)  D1 has a clear record.

(b)  The Prosecution called 5 witnesses to give evidence. PW1, PW2 and PW3’s evidence related to the general issue, while PW4’s evidence related to the special issue of D1’s record of interview (of which have been ruled out). PW5’s evidence mainly related to the arrest of D1 and the special issue.

(c)  The evidence of PW1 and PW2.

(i)  They were friends. At about 3:40 a.m., they left the Club in Lan Kwai Fong and walked down the D’Aguilar Street. PW1 wore his Rolex watch on his left hand. He rested his left hand on the left shoulder of PW2. As such, his watch was exposed and was not covered by his long sleeve.

(ii)  While they were walking the road toward the Queen’s Road direction, D1 and D2 walked up to them.

(iii)  D1 was in front of PW1 and D2 was in front of PW2.

(iv)  They were one meter away from each other.

(v)  D2 looked at PW1 and said loudly that “I like this guy.”

(vi)  D1 tapped on PW1’s chest lightly to distract his attention and said something to PW1. The tapping might or might not touched the chest of PW1.

(vii)  D2 pulled his hand and unbuckled his watch, PW1 shouted “you want to steal my watch?”

(viii)  Due to the force of the pulling, both PW1 and PW2 turned their bodies to the left side.

(ix)  The watch was hanging on the left wrist of PW1.

(x)  PW1 shouted to the police who was in the near vicinity for assistance.

(xi)  D1 and D2 were arrested at the scene.

(xii)  PW1 and PW2 drew sketches in Court as exhibit P5 and P6 respectively to indicate their locations.

3.D1 elected to give evidence in the general issue. D2 elected not to give evidence.

4.D1’s evidence was that: -

(a)  He went to a bar to drink beer from 1:30 am to 3:00 am alone. He drank about 10 cans.

(b)  When he left the bar, he was waiting at the railing for his female friend to bring him his house keys.

(c)  D1 saw a group of 4 persons, they were shoulder by shoulder, one of them were singing and the other four were dancing. D1 believed that they were good men. He joined them for a dance. He put his hands on their shoulders. They waved up and down.

(d)  He only asked them: where were you from?

(e)  D2 was not in the group.

(f)  D1 only dance for a few seconds and stopped. He returned back to the railing and waited for his friend to come.

(g)  The group of 4 men continued to walk down to Queen’s Road direction.

(h)  One of them called to the police and accused D1 wanted to steal from him.

(i)  D1 denied that and said that he was just dancing.

(j)  The police said that they were all drunk and should go home to sleep. Later the police suggested D1 to apologize to the gentleman. D1 refused as he did not do anything as alleged.

(k)  The police asked them all to go back to the police station to apologize to each other.

(l)  As the 4 gentlemen were tall men, D1 could not see anything behind them. He did not see D2 until D1 was in the police station.

Assessment of evidence

5.When I assessed all the evidence before me, I bear in mind that it was the duty of the prosecution to prove its case beyond all reasonable doubt.

6.D1 has a clear record, I directed myself as to his propensity to commit the offence is low and his credibility in his evidence should be enhanced.

7.D2 elected not to give evidence.  This is his right.  I do not draw any adverse influence against him as he does not need to prove his innocent.

8.The defence and the prosecution agreed that I should give myself a Turnbull warning as D2’s case was that his identity was being mistaken by PW1 and PW2.  On the other hand, defence counsel for D1 does not suggest such that a Turnbull direction is required because D1 admitted being present at the scene.

Special Issue

9.In this trial, there was an alternative procedure to determine the admissibility of the record of interview of D1.

10.The ground of objections were 2 folds: -

(a)  D1 spoke Swahili, he was only provided with an English interpreter;

(b)  Legal representative.

11.DPC22304 (PW4)  said that it was D1 who told him the record of interview could be conducted in English, while D2 requested a Swahili interpreter.  He arranged a Swahili interpreter for D2 at his request.

12.In other word, whether to call for an English or Swahili interpreter made no difference to him.  He did the arrangement according to D1’s wish.  It was just a phone call to made the necessary arrangement.

13.D1 in his evidence said that a police officer passed on a mobile phone to him and he used the phone to ask for a lawyer to come to see him. But he was later told by the police that his lawyer would not come.

14.I certainly did not believe D1’s saying that a police officer would just give him a mobile phone to made contact with someone when it was during a stage of investigation.

15.The team who was on duty for the investigation of this case was called to the court, but D1 could not recognise that particular officer.

16.PW4 said that there was standard procedure for such an arrangement, such as a telephone with a land line and a permission from a senior officer.

17.We all do not know the truth how did D1 manage to get someone to contact his solicitor to arrange a legal visit for him bearing in mind that he is a Form 8 holder with limited financial resources.

18.His counsel Mr Wong did come to court to give evidence on his behalf that he did meet D1 in the police station.

19.Chronology of events: -

9:30 pm	Counsel received instruction to attend police station. Counsel was having dinner in TST.
10:05 pm to 11:02 pm	Taking of the record of interview from D1
	In Counter 124: when he was asked whether he wanted a lawyer to represent him, he said “Yes” In Counter 128: he was told if he need a lawyer to be with him, then the interview has to be stopped. D1 changed his mind and said that he did not need one.
11:50 pm	Counsel arrived at the Central police station.
00:17 am to 00:52 am	D1 met his counsel privately for legal advice Counsel gave evidence that he advised D1 on his right of silence.

20.I ruled that the record of interview was taken by D1 voluntarily. However, I exercised my discretion to rule out the record of interview on the ground of fairness as the timing showed that counsel had been instructed to attend the police station 30 minutes before the commencement of the record of interview.  His counsel was on his way to the police station.  That explained why his first reply was a “yes” that he wanted to have a lawyer to represent him.

Mistaken Identity of D2?

21.Counsel for D2 said that there was a mistaken identification by both PW1 and PW2.  As the witnesses said that after a pull of PW1’s left wrist, D2 walked away.  There were only a few seconds for them to observe D2.  The defence said that it was a “fleeting glance” situation.

22.There is also a gap of time as to the person who grabbed PW1’s wrist had already walked away from PW1 and PW2 before the police arrived to arrest D2.  PW3 said that when he approached them (PW1, PW2, D1 and D2), they were in a quarrel.

23.The defence said that the person who walked away was not the same person engaged in the quarrel.

24.PW1’s evidence was that when they (PW1 and PW2)  walked down D’ Aguilar Street to Queen’s Road Central, D1 and D2 walked side by side uphill.

25.D1 was in front of PW1 when D2 was in front of PW2.

26.There was no one between the two parties and they were one meter apart.

27.The incident took place outside 7-11 convenient store and there was sufficient lighting to see.

28.Before D2 approached them, he said loudly that “I like this guy”.  PW1 had his Rolex watch on his left wrist.  D2 grabbed PW1’s left wrist forcefully that caused both PW1 and PW2 to turn to the left side as PW1’s arm was over the left shoulder of PW2.

29.PW2 said that at this point of time, PW2 was in a 3 o’clock position while D2 was in the 2:30 position. That means when D2 walked to the left, he was just slightly behind PW1 and PW2.

30.PW1 and PW2 also turned to the left and they could see where D2 was.

31.PW1 also said that there were so many people walking down the road (the bars closed at 4 am), there was simply no room for D1 and D2 to run away.

32.They both did not lose sight of both D1 and D2 when they walked away.

33.PW1 shouted to the police to stop them.  There were about 10 police officers nearby to supervise the crowd control.

34.The police came forward and were informed as to what did D1 and D2 do.

35.From exhibits P5 and P6 – the sketches drew by PW1 and PW2 – that they were on the pavement of D’Aguilar Street while the police were on the road.

36.D’Aguilar Street is an old street perpendicular to Queen’s Road Central. It is nothing new to me.  It is a narrow road, on both sides of the road, there are pavements.

37.Geographically, the police were just a stone’s throw away from PW1 and PW2.  It would not take long for the police to come over to where PW1 and PW2 were.

38.PW2 said that they all stayed together and facing D1 and D2 (sketch P6 refers).

39.PW1 and PW2 saw D1 and D2 the whole time without losing sight of them.

40.PW1 and PW2 also said that they did not see any other people in black skin (PW2’s evidence)  or “any black male” (PW1’s evidence).  Their focus and attention were on D1 and D2 only.

41.PW2 also said that he did not remember other people except the 2 of them (D1 and D2).

42.It is true that PW2 only had a few seconds to look at D2 (who was wearing a mask)  when he was in front of PW2.  However, PW2 said that he could still see his eyes, his height, his shirt and his general appearance.

43.Both PW1 and PW2 said that D2 is a tall and strong man.  PW1 said that D2 is 198cm.  He himself is 178cm.  D2 is significantly taller than both PW1 and PW2.

44.PW3 said that after he made enquiry from the witnesses, he made the arrest of D2 at the scene.

45.Both PW1 and PW2 identified D2 in Court as the man who grabbed PW1’s left wrist where the Rolex watch was.

46.I rule that the identification evidence of PW1 and PW2, not only they are honest, but also reliable.

47.When 2 witnesses identified the same person as D2, clearly it carries more weight than by one alone. I reject the submission by the defence counsel that there is an issue of mistaken identity.  I rule that there’s no mistaken identity of D2 by PW1 and PW2.

General Issues

48.I now come to deal with the inconsistences between PW1 and PW2 as stated in the final submission by the defence: -

(a)  PW1 said there were more than 100, may be 200 people going down to Queen’s Road Central while PW2 said about 50 to 60 pedestrians in front of him;

(b)  As to the distance between the police when PW1 shouted to the police – PW1 said that it was about 15 meters, while PW2 said that it was 6 to 8 meters;

(c)  PW1 said that the incident last for about 20 seconds while PW2 said that it lasted for 5 to 10 seconds.

49.In my judgement, these are all very minor discrepancies between PW1 and PW2.

50.When D1 and D2 were arrested, it was 4:10 am.

51.The bars and the clubs were closed at 4 am. A lot of people were walking down D’Aguilar Street.  No one would expect to give evidence in court as to the number of pedestrians on the road.  The figures were only an estimation.

52.The whole incidents happened very quickly, whether it was 5 - 10 seconds or 20 seconds, the witnesses are telling me that it happened within a short duration.  One has to bear in mind that the duration of time was not their focus.  They were not participated in a race that they carried a stop watch to count the time.

53.In their minds, it was a case of stealing of an expansive watch, what was more important to them? The time or to apprehend the culprits?

54.Likewise, the distance was also an estimation.  Both PW1 and PW2 drew on P5 and P6 as to their respective locations as well as the police.  The police were in the middle of the road when they were on the pavement.  I have already said previously that the distance between them could not be too far away.

55.The defence also said that there are two versions of the incident between PW1, PW2 and PW3.

56.PW1 said that when he shouted to the police, before the police came, D1 and D2 walked away to the back on their left hand side.

57.While the PW3 (PC25358)  said that four males were seen in a quarrel.

58.PW1 and PW2 never mentioned about a quarrel.  However, PW3 said that what drew their attention was a “passerby came to tell them someone stole something from somebody outside 2 – 16 D’Aguilar Street near to Queen’s Road Central”.

59.The police then went to see what happened, they saw 4 males were in a quarrel.  This case involved PW1, PW2, D1 and D2.  They were all males.

60.As to what did they quarrel about, there was no evidence from PW1 and PW2 as they were never cross examined on this topic.

61.However, PW3 did make enquiry from PW1 and PW2 at the scene before D1 and D2 were arrested.

62.PW3 was informed that PW1’s hand was on PW2’s shoulder. D1 kept talking to PW1 while D2 grabbed PW1’s wrist and the buckle of his watch was unfastened. PW1 shouted to the police that D2 wanted to steal his watch.

63.PW1 and PW2 said that all the while from the incident until D1 and D2 were intercepted by the police, the 4 of them stayed together, they were facing D1 and D2.

64.I have actually covered this part of evidence in previous paragraphs in relation’s to identity of D2.  I already ruled that there was no mistaken identity of D2.  He was the one that grabbed PW1’s wrist.

PW3

65.The defence also mentioned in the final submission that: -

(a)  When PW3 made enquiry from PW1 – he only mentioned D1, did not mention D2;

(b)  That cannot be true. It was the evidence of PW3 that PW1 told him that D2 grabbed his hand, near to the area of his watch and he found the buckle of his watch was unfastened;

(c)  PW1 did mention D2 to PW3;

(d)  It was D2 grabbed his hand and unfastened the clasp of his watch. That was a very important part of his evidence.

PW1 and PW2 were drunk?

66.Both counsel submitted that PW1 and PW2 were drunk and therefore were confused as to what actually happened at the material time.

67.PW1 said that he has been drinking from 11:30 pm to about 3:40 am for half a bottle to one full bottle of champagne.  He did not know the alcohol concentration of the champagne.

68.He did put his arm around the shoulder of PW2, but that was only a sign of friendliness.  He could still walk without putting his arm over PW2’s shoulder.

69.He said that he was tipsy at that time, but not drunk.  PW2 never said that he was drunk when he left the Club with PW1.

D1’s credibility

Where did he live at that time?

70.In chief, he said in Tuen Mun.

71.In cross examination, he said in Yuen Long because the mini buses run from Queen’s Road Central to Yuen Long.  After getting off the mini bus, he walked home.

72.There was no bus running at that time of day, I doubt there was any minibus to run in that route unless there were enough passengers to take that route.

73.I reckoned D1 simply changed his evidence to suit his need.

$350 for travelling expenses

74.D1 has HK$350 cash for transportation each month.  Before the arrest, he drank 10 cans of beers from 1 am to 3 am.

75.It is roughly 12 minutes for one can of beer.

76.He bought the drinks as he ordered, but he could not remember how much it cost per can.

77.When he had only HK$350 cash per month, surely he would be very careful in his spending.  To buy drinks in Lan Kwai Fong would not be cheap as the rent in Central was always high.

78.In his own evidence, he said that he could not work in Hong Kong to earn any income.  No doubt, he has no finance means to buy himself drinks in Central. The question is where did he get the money from?

79.He also had to leave some cash to take the mini bus home as he alleged.

80.I found his evidence that he had been drinking 10 cans of beers before the arrest and he was drunk was a piece of lie.

How did he meet PW1 and PW2

81.D1 said that he was waiting at the railing to meet his female friend to return his house key.

82.Then a group of 4 Chinese male, they put their hands over each’s shoulders to walk down the road.  They appeared to be drunk.  One of them approached him, started to sing while the others started to dance.

83.D1 believed that they were good men, he joined them for a dance for a few seconds.  D2 was not in the group.

84.These 4 males were tall men, D1 could not see anything behind them.  PW1 said that he was 178 cm tall.  We all have seen PW2 in court, he was much shorter than PW1.

85.The D Aguilar Street was a descending road to Queen’s Road Central.  That means when D1 was facing uphill, any person at the back of PW1 and PW2 would be in his sight.

86.Both PW1 and PW2 said that only 2 of them were walking down side by side. The pavement was not wide enough to accommodate 4 persons, but only 3 persons, to walk abreast together.

87.PW3 said that there were PW1, PW2, D1 and D2 engaged in a quarrel.  Therefore, there were no other Chinese males apart from PW1 and PW2 as alleged by D1.

88.PW1 and PW2 never said that they danced the way down to Queen’s Road Central.  Neither did any one of them sing.

89.The fact that D1 said that he first saw D2 was in the police station was totally incredible. PW3’s evidence was very clear that D1 and D2 were arrested at the scene after making enquiry from PW1 and PW2.

90.The admitted facts also stated that D1 and D2 were arrested at 4:10 am by PW3 and PC25358 at D’Aguilar Street near to the lamppost 38355.  That means they were arrested at the same time, in the same location.

The watch clasp – accidentally undone?

91.The defence do not take issue that the clasp of the watch has been opened. As a result of which, it was hanging on PW1’s wrist. PW1 had demonstrated the hanging watch on his wrist for several times in Court.

92.Defence Counsel suggested that the watch clasp could have been undone on its own when the group was dancing because of their dance movement by raising hands up and down.

93.We are talking about a Rolex watch in the present case.  PW1 spent HK$85,800 (he brought the receipt to Court to show the price of it)  to buy it in a second hand shop. No doubt it is an expansive watch. Rolex is renowned for its workmanship and craftsmanship. We all have the opportunity to examine the watch in open court.

94.It is a folding clasp.  When the clasp is opened, the clasp still attached to the watch band.  When it is closed, it fits onto the wrist of PW1. It forms like a secure closure with a safety mechanism.

95.To open the clasp, one requires an intentional and purpose movement act to unbuckle the clasp as it is firmly, safely and securely fastened.  It is not a flimsy clasp that can be easily opened.

96.PW1 said it very firmly without being shaken in cross examination that it was D2 who came up to him, grabbed PW1’s wrist by his hand, D2’s hand was a big one, D2’s hand covered his watch, he pulled PW1’s hand to the left by force.

97.PW1’s arm was resting on PW2’s left shoulder. The force was so great that PW1 and PW2 both turned to the left hand side.  He saw his watch was hanging on his wrist and the clasp was unfastened.

98.I ruled out the possibility that the watch clasp was accidentally opened as suggested by the defence.

Police suggested to make apologies

99.D1’s evidence was that he was accused by PW1 for no reason as he only put his hands on their shoulders for a dance, never tapped on anyone’s chest. That was the only body contact he had with the group of 4 men. He did not do anything wrong. Therefore, he refused to apologise, but the police insisted that they should go back to the police station to apologise to each other.

100.For this, I find it totally absurd and it is against common sense that the police would trick him to go to the police and took D2 as well when he said D2 was not part of the dancing group.

Conclusion

101.Having analysed the evidence carefully, I find all the Prosecution witnesses evidence are credible and reliable.  I accept their evidence as to what happened at the scene, I come to the conclusion without any reasonable doubt that it was D1 and D2 acted in concert in an attempt to rob PW1’s Rolex watch.

102.I reject D1’s evidence as he clearly told tales in the witness box.

103.D1’s role was to distract PW1 by saying something to him and at the same time his act of tapping was light, it might or might not touch the chest of PW1. While D2 simultaneously grabbed PW1’s hand and pulled his hand away and opened the clasp of the watch with the intent to steal PW1’s watch.

104.PW1 and PW2 did not mistakenly identified D2 at the scene, it was D2 who took part in the attempt of robbing PW1’s watch.

105.The Prosecution case is proved beyond all reasonable doubt. I found D1 and D2 are convicted as charged.