HKSAR v. Ilyas Gul Share Chand and Others
Read the full judgment text of DCCC 946/2021 on BabelCite. This District Court judgment was delivered on 30 June 2023.
1. In this hearing, D2 Liaqat Zubair is charged with three other persons, namely, Ilyas Gul Share Chand (D1), Jailani Nakki Jailani (D3) and Ng Tung-hung (D4) one count of robbery, contrary to section 10 of the Theft Ordinance. D2 pleaded not guilty to the charge. As other defendants had pleaded guilty and would be dealt with separately in due course, this trial only concerned D2.
Cited by 2 cases
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DCCC 946/2021 [2023] HKDC 1024 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 946 OF 2021 ________________________
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________________________ REASONS FOR VERDICT ________________________ 1.In this hearing, D2 Liaqat Zubair is charged with three other persons, namely, Ilyas Gul Share Chand (D1), Jailani Nakki Jailani (D3) and Ng Tung-hung (D4) one count of robbery, contrary to section 10 of the Theft Ordinance. D2 pleaded not guilty to the charge. As other defendants had pleaded guilty and would be dealt with separately in due course, this trial only concerned D2. 2.The prosecution contended that D2 was party to a joint enterprise consisting of D1 to D4 to commit a robbery against D4’s co-worker (the victim). 3.D1, D2 and D3, all under 20 years old, are Hong Kong residents of Southeastern Asian extraction, had been friends for years. They met regularly and communicated through telephones and WhatsApps. D4, an older female who came to know D1 in a social setting, offered D1 money to have the victim beaten. She also told D1 that the victim had some valuable items which the latter could share amongst other participants as part of the reward. 4.The prosecution contended D1 recruited D2 and D3 to carry out the heist. D2’s part was to record the assault and theft as proof of the deed. Matters Not In Dispute (See also Exhibits P1, P2 to 3) 5.The relationship of D1, D2 and D3 had been revealed in the oral evidence of both of D1 and D3 and had not been challenged in cross-examination. The fact that the victim was assaulted, and in the process, been deprived of her properties in Wanchai at 0015 hours on 7 May 2021 by D1 and D3 was not in dispute. 6.As a result, the victim suffered abrasions, swellings and bruises respectively on her right wrist, left elbow, left little finger and right side of her face. She had been admitted to the hospital, treated and subsequently discharged. She lost her identity card, bankcards, Octopus card, some jewelleries, some cash and expensive brand name leather goods in the total value of $152,630. 7.At the time of the assault and theft, D2 was in the vicinity and took a video record with his mobile phone. Under caution, D2 denied that he was previously aware of D1 and D3’s intention to commit a robbery. The issue in this hearing is, despite the fact that D2 was not physically involved in the assault of, and theft from, the victim, whether he had been party to the joint enterprise in committing the robbery. 8.To prove the case the prosecution mainly relied on computer records of the communications amongst other participants, the live evidence of D1 and D3, the CCTV footages in various occasions taken before and after the robbery. 9.This is a criminal prosecution. Needless to say that the prosecution bears the full burden of proving every element of the alleged crime to the degree required by the law. The defendant does not need to prove anything. 10.D2 had a clear record. In considering the evidence, this court bears in mind that such a person is less likely to commit a crime than others who do not put forward such a fact. And if he does choose to give evidence, his words would carry more weight in his favour. 11.In this hearing, D2 chose not to give evidence. That is his right. No adverse inference would be drawn against him. It means that this court would not have the defence evidence to contradict, weaken or proffer a different narrative to the evidence adduced. Yet the burden of proof still rests fairly and squarely on the prosecution. 12.Both live witnesses are party to the joint enterprise. They had both pleaded guilty to the charge, and their sentencing had been adjourned pending the disposal of this hearing. 13.In considering the evidence of D1 and D3, this court bears in mind of the tendency of a co-accused to shift the blame on the others and/or distort the content of their evidence to minimise their culpability in return for a more favourable view from the adjudicator and thus a lighter sentence. Evidence of D1: PW1 14.Sometime in mid-March 2021, D1 met D4 in a bar and they became casual friends. On 10 April 2021, D4 called D1 by phone. Since D1’s command of the Chinese (Cantonese) and English language was insufficient and D4 could only speak and write in Chinese, D1 asked his friend D3, who was conversant in both languages, to call D4 to find out what she wanted. The subsequent communications were made directly between D3 and D4 and then related to D1. 15.D1 learnt that D4 would like D1 and D3 to avenge the victim for stealing her boyfriend by assaulting her, robbing her of her valuables and warning her not to poach other people’s spouse. As reward, D4 would give them $17,000 in cash plus any other valuables they could steal from the victim. 16.D1 and D3 jointly agreed to enlist D2 to make a video of the robbery. D3 first approached D2 on 3 May 2021. On 4 May 2021, D4 posted a picture of the victim on a chat group and transferred a sum of $10,000 as down payment. After the money was transferred in the afternoon of the same day, the three defendants met up, during which D1 and D3 explained that they were going to rob a woman to “teach her a lesson” on a day to be advised, and invited D2 to participate by having to take a video record of the assault. In exchange, D2 would be rewarded $3,000. D2 agreed to participate. 17.During the meeting D1 also suggested that after the robbery, they should not go home immediately but all would go to stay in a hotel for the night. D3 also suggested that they should all be wearing the same clothes, to which D2 agreed, because “it would be safer”. 18.It is not disputed that D1 to D3 did go and stay in a room in Penta Hotels in Tuen Mun after the robbery. 19.After the meeting, D2 and D3 went to purchase white caps and white T-shirts for the robbery. D2 was also tasked with keeping and bringing them to the scene. Although D1 was not present in the shopping trip, he was advised of the same by D3. 20.At around 1 pm on 5 May 2021, D3 called to advise D1 that the robbery should take place on 6 May 2021 at around 10 pm. D1 agreed to pass the message to D2. 21.D1’s evidence was supported by the written exchanges in the chat groups to which D1, D3 and D4 were parties. (See the 80 screenshots of D3’s telephone, P90; certified copy, P90A) 22.The discussions were in the form of written texts, audio recordings and even emojis. D3 had most of his messages deleted subsequently. During the exchanges, D4 gave detailed instructions as to how the victim was to be located and the amount of cash to award, the kind of valuables the victim would be carrying. 23.D4 did not give evidence. However, what D4 said in the communication could be used as words from a party to a joint enterprise and also as a piece of real evidence which explain and support the actions of the witnesses, namely, D1 and D3. Those exchanges corroborated their evidence in court. 24.D1 explained that owing to his poor command of English and Chinese, he relied on D3 to explain to him the content of the exchanges. He did not have any direct discussions with D4. Indeed, his contribution to the discussions recorded in P90A was scanty. D1 stated that D4 was only told that someone would take a video record of the deed but was not advised of the precise role of each person. It was D2 who brought the change of clothes. They first went to Wanchai for a meal at a McDonald’s before changing into the T-shirts and caps. They received instructions via WhatsApp from D4 concerning the movement of the victim while waiting in the vicinity. They followed the victim for four minutes and accosted her before she boarded a taxi. D2 recorded the assault and theft with his own mobile phone. 25.After the robbery, D2 handed over his backpack for carrying the valuables stolen from the victim. D1 and D2 then boarded a taxi to go to the Hong Kong University MTR Station. D3 took a separate taxi to meet up with them. They then took a taxi together to go to Penta Hotels in Tuen Mun. 26.D3 also identified each person in some of the CCTV footages. D4 turned up in the hotel to view the record of the robbery, after which she paid D1 the remaining $6,000. D1 also stated that D2 was first given $2,500 at the McDonald’s. After receiving the balance of the payment, he gave D2 another thousand dollars. 27.Much time had been spent in questioning the inconsistencies in the witness statements and his evidence in court, but the substance of D1’s oral evidence was not challenged under cross-examination by the learned counsel of the defence. D1 denied that he lied about the role played by D2 in the heist. 28.D1 admitted that some of the matters recorded in the witness statement (MFI1) had not been accurate. He explained that he had requested for an interpreter in his own tongue but had not been heeded. He did not really understand the statement but decided to sign it anyway. It was revealed that PW3, the police officer tasked with taking the non-prejudicial statement, had to rely on PW4, a Police Interpreter II, Mr Chow Yeung Sin, Redmond, to translate what D1 said in English into Chinese before PW3 made a record of the same. After the Chinese record was made, it was translated back into English for the benefit of D1. D1 stated in court that his English was not really up to par to read and confirm the veracity of its content. 29.Needless to say, while distortion and mistakes are common even in a simple process of translation from one language to another, this convoluted exercise would inevitably lead to misinterpretations and distortions. 30.I find the wordings used in D1’s statement (MFI1) consistent with being a summary of a global discussion peppered with back-and-forth questions and answers instead of merely a verbatim record of the running soliloquy made by a person whose English could be at best described as insufficient. While I believe that PW3, the statement-taker, and PW4, the police interpreter, had no intention of falsifying or distorting what D1 said, I do not accept their descriptions of the process of taking the statement. Their failure to secure the service of an Urdu interpreter had been most unsatisfactory. 31.In any event, I do not consider the inconsistencies fatal to D1’s credibility on the core issues. It is what he said in court under oath, with the assistance of a proper interpreter conversant in his mother tongue and tested under cross-examination, that mattered. I would consider the full contents of his evidence in court, the logicality on the narrative and the manner of his deliverance against the background of other corroborating or unchallengeable evidence, in particular, the WhatsApp record (P90A) to accord proper merit to the same. 32.Admittedly, P90A is not a complete record. A lot of D3’s messages have been deleted, and some of the messages are audio ones, the contents of which have not been retrieved by the prosecution. Most of that messages were from D3. D1’s words are few and far in between. However, with the verbal evidence of D1 and D3, it is not impossible to work out the flow of discussions and the extent of the agreement. It consisted of words and declarations of parties to a joint enterprise and are admissible against the defendant, D2. It is also a piece of real evidence that serves to support and corroborate the evidence of the live witnesses. 33.D1 had pleaded guilty. He admitted his decision to give evidence was motivated by the desire to have a more generous reduction in the sentence order, but that itself is not a reason to discount his evidence immediately. He admitted his instrumental role in the heist. D2 had played a rather minor role. All this had been supported by CCTV evidence. 34.Having observed him in court, I find that despite his desire to be in this court’s good graces, he had given a full and fair account of the incident. He had no reason to drag D2 in. I accept the substance of his evidence, in particular, the part concerning the enlisting of D2 in the heist and D2’s role of recording the assault. 35.The same considerations apply to D3’s evidence which are similar, barring minor details, to that of D1. From the CCTV footages secured by the police officers, D1 to D3 had been seen together in various locations and are consistent with the oral evidence of D1 and D3. Evidence of D3: PW2 36.D3 was educated up to Form 5. He could read and write English and Chinese. He confirmed that D1 could hardly speak Cantonese and D1’s command of English was not as good as his. For this reason, he communicated directly with D4. 37.On 2 May 2021, at the suggestion of D1, first mentioned to D2 the robbery in order to recruit the latter as a third participant. At that point, D3 only heard of it from D4 via a chat group set up that day but no detail was given. 38.On 4 May 2021, after D4 had given full instructions and made a deposit for the reward, D1 to D3 met up to discuss about the robbery. D2 was assigned by D1 the task of video-recording the robbery. D1 suggested that they should all stay in the hotel after the robbery to avoid the apprehension. 39.On 5 May 2021, D1 suggested that they should all wear gloves and the same T-shirts and caps to confuse the police and avoid detection. On the same day, D1 and D4 went to Yuen Long to purchase T-shirt and caps. The aforementioned items were passed on to D2 who was instructed to bring them to the scene of crime. 40.On 6 May 2021, D3 and D2 went to Penta Hotels to make reservation of a room (See P90A(2) and the descriptions below). The room was booked under D2’s name but was paid for by D3. After that, D3 and D2 returned to their respective homes. Later in the evening, the three defendants arranged to meet in Wanchai MTR Station (P90A(2)). 41.The defendants had a meal at a McDonald’s where D1 paid money to D2. During the robbery, D1 accosted and assaulted the victim, uttered the agreed words of warning and took her handbag while D3 took her jewelleries. All the while, D2 was about 20 feet away, at the instructions of D1, to do video recording of the assault. After the robbery, D1 and D3 took a taxi to the Hong Kong University MTR Station where they took off their T-shirts and caps. D2 took a different taxi to meet up with them. 42.Some time later, D4 came to the Penta Hotels. After viewing the video footage, she gave some money to D1. D1 at some point gave D3 $5,000. D2 left the room at about 9 am on 7 May 2021. 43.D3 was cross-examined extensively by the learned defence counsel in relation to the dates when D4 made contact with D2 through D1. In fact, upon closer study of the P80A, I found that in fact there were two chat groups to which D1, D3 and D4 were participants:-
44.The participants used both chat groups intermittently, sometimes covering the same topic on the same day. As an illustration:- on 6 May 2021, D4 posted the same questions on both chat groups to the effect that whether the other party/parties had been frequently contracted by females to attack other females. (See P80A, 15 to 16, Group 1 at around 8 am and P80A, photo 72, Group 2 at around 1 am.) 45.Therefore, it is not surprising that D3 could have been confused as to when the chat group was created and when and what was discussed in which group. In any event, such confusion did not affect the credibility of the witnesses in the core issues of the case. 46.D3 was further cross-examined on the inconsistencies between his oral testimonies and his witness statement, in particular, matters such as when, how many and by whom the chat group was created, whether D3 saw money change hands between D1 and D3 in the hotel room. 47.I agree that those were unsatisfactory aspects of their evidence. Yet the substance of their allegations, namely D2 had been party to carry out the robbery and had received monetary reward for his participation, had not been challenged. D3 denied that he bore any ill will against D2. He stated he was not aware that D2 had given the footage of the video recording to the police, therefore he had no reason to be angry at D2. He denied making up the part about the participation of D2. 48.I found that those alleged inconsistencies were of a collateral nature and did not affect his overall credibility and the substance of the allegation. Video-recorded Evidence 49.The evidence of D1 and D3 was supported by the movements of D2 as recorded by CCTV cameras installed in various locations. In particular, D2 was seen at the various locations on the day before the robbery (early hours of 7 May 2021). 50.Except stated otherwise, D1 to D3 were all present at the scene described in the evidence of D1 and D3 (See P102):-
Footage of the Robbery 51.The robbery was recorded in D2’s mobile phone (P5 and P77). Investigators produced a photo album containing some of the images as part of the evidence, P102. P77 was played in court repeatedly. The images were recorded from about 10 feet away of the robbery. D1 appeared to have taken a more aggressive role in assaulting the victim while D3 snatched her belongings. D2’s Response under Caution, Admitted Facts, P1, at paragraph 31 52.Upon his arrest on 27 May 2021, D2 basically denied knowledge that others were planning to carry out a robbery. During the subsequent video-recorded interview (see the transcript P37B and P41D), D2 elaborated that he was recruited by D1 two days before the incident to do “a logistic transportation job” in Kwun Tong for a wage of about $900. D3 gave him a white shirt and a cap as work uniform. Upon seeing D1 and D3 attack the victim, he took a video record of the incident. 53.He was so scared and confused that he agreed to spend the night with them at the Penta Hotels in Tuen Mun. He also disposed of the “uniforms” and the victim’s handbag at D1’s instruction. He never received any money. 54.In short, he admitted presence but denied knowledge or participation. D2 did not give evidence to support his exculpatory part of his narrative. 55.In any event, this court has to consider the inculpatory part in the light of the exculpatory part. He did not give evidence to support his intention to explain his presence. There are no evidence from him to consider. What remains is an unchallengeable fact that he was present throughout before and after the heist. 56.I found what he said in the interview was so incredible that it defied logic and common sense. Findings 57.D2 was not part of the chat groups. He was never mentioned by name nor did he ever post any message. However, D4’s message posted on group 2 (at 1:16 am on 6 May 2021, P90A, photo 70) clearly indicated that there would be someone responsible for taking a video record of the assault. 58.In my view, the WhatsApp records complemented and corroborated the evidence of D1 and D3. I am convinced beyond all reasonable doubt that D2 had been recruited by D1 and D3 to participate in an assault and theft for a reward. That was the only explanation for (D2’s) presence in various locations, and that was the only explanation for his active participation by going to reserve a hotel room, by bringing the so-called uniform to the site, putting it on and also subsequently disposed of the evidence of the case by dumping the T-shirts and the stolen handbag. 59.He wore the same T-shirt as did the other defendants. He was clearly aware of the robbery before it took place. That he left with other defendants to stay in the same hotel room after the robbery could only be explained by his willing participation in the heist. Although he did not personally assault or steal from the victim, took no part in the prior negotiation, in my view, his participation rendered him equally liable as were the other defendants in the robbery. 60.For the reasons stated above, I found D2 guilty as charged.
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