HKSAR v. Rai Atiqullah Khan and Another

DCCC 316/2022

[2023] HKDC 1433

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 316 OF 2022

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REASONS FOR VERDICT

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Introduction

1.The 2 defendants are jointly charged with 1 count of “Robbery”, contrary to section 10 of the Theft Ordinance, Cap.210 (Charge 1). Particulars of Offence alleged that on 4 January 2021 at Tai Tam Road, Chai Wan they robbed Mr. LEE Ronald (“PW1”)  of HK$3.6 million in cash and 2 mobile phones. D2 also faces on his own another count of “Dealing with property known or believed to represent proceeds of an indictable offence” (commonly known as “Money Laundering”), contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap.455 (Charge 2). Particulars of Offence alleged that on 5 January 2021, he dealt with 17.4 bitcoins, knowing or having reasonable grounds to believe those bitcoins, in whole or in part directly or indirectly, represented the proceeds of an indictable offence. Both defendants pleaded not guilty to Charge 1; D2 also pleaded not guilty to Charge 2.

Prosecution’s Case

2.The 2 Charges are inter-related. It is the prosecution’s case that PW1 sold 15 bitcoins on 4 January 2021 to D1 and another person for HK$3.6 million in cash. He was robbed of the said cash immediately after the sale, with both defendants involved. This formed the basis for Charge 1. The same 15 bitcoins, together with some more, totalling 17.4 bitcoins, were sold by D2 to another bitcoin dealer the next day. This formed the basis for Charge 2.

3.At the beginning of the trial, some background facts and formal evidence were agreed by the parties and presented as Admitted Facts (P18). Among them 9 CCTV footages taken at various locations (P4 to P12)  with a total length of over 135 hours 41 minutes were admitted as part of the prosecution’s evidence, with another footage (P21)  with a total length of 36 hours 42 minutes, also admitted at a later stage (P18A). A total of 67 still frame photo images were prepared from these CCTV footages and admitted as P17. The prosecution also called 4 PWs.

4.PW1 is the main factual witness in the case. In order to understand the nature of the prosecution’s case, I will summarize his evidence in some detail.

5.PW1 had received tertiary education in computer science. He started trading in bitcoins since 2013. By January 2021 he did not have a steady job, and relied on the selling of bitcoins he had amassed at very cheap price in the earlier days to support his living. Transactions conducted in cash was not uncommon in his trade.

6.In 2020 he came to know a South Asian customer by the name of Jack through other traders. He communicated with Jack through a messaging software called “WICKR”. Before 3 January 2021 he had traded with Jack for about 10 times. He had met Jack face-to-face. Although it was during the COVID pandemic, Jack sometimes would remove his facemask when they met. He described this Jack as around 1.8 metres tall, around 25 to 30 years old, slim built, with short and a bit curly hear, and did not wear glasses.

7.His trade of bitcoins with Jack initially were of small quantity, around HK$10,000 to 20,000 only. They were conducted inside a Mercedes Benz private car driven to PW1 by Jack’s friend.

8.In around December 2020, PW1 came to know another South Asian man called John through Jack. John drove a white Bentley sedan car to take Jack to PW1 to complete a transaction.

9.Later, John contacted PW1, indicating that he wanted to buy a large quantity of bitcoin from PW1. On 3 January 2021 it was agreed between PW1 and John that PW1 would sell bitcoins worth HK$1 million to John.

10.On 3 January 2021 PW1 met up with John and Jack at outside the Hyatt Centric Hotel in North Point. John drove the same white Bentley sedan car, registration number VN 5371, with Jack on board. Both of them were not wearing facemasks. After they met up, PW1 received a bag of cash from John. He counted HK$1 million in the car which took about 1 hour. He then transferred 3.715 bitcoins to the bitcoin address given by John through his mobile phone using an App called “Mycelium”, which he used to manage his bitcoins. While he was waiting for John to confirm the transfer, which on that occasion took about half an hour, he went to North Point MTR station to deal with another bitcoin transaction at the Hang Seng Bank ATM machine there. Jack accompanied him during the period. On Jack’s request he transferred 0.0007 bitcoins, valued around HK$2,000, to Jack as commission.

11.Later in the same day Jack contacted PW1. He stated that John would like to purchase more bitcoins from PW1, for worth of HK$5 million the next day. PW1 was hesitant in dealing in such a large sum in one go, so he said he only had HK$2 million worth of bitcoins with him and would try to get some more, when in fact he had sufficient bitcoins to meet the request.

12.In any event, PW1 did meet John and Jack on 4 January at some time after 5 pm at the Hyatt Centric in North Point. As before, John drove the white Bentley VN 5371 with Jack on board and picked PW1 up thereat. They then moved to a location at a pumping station in Quarry Bay. It was agreed between PW1 and John during that journey that PW1 would sell 15 bitcoins to John for HK$3.6 million.

13.At the pumping station, still inside the car, Jack or John handed a bag containing cash to PW1 for the latter to count and take out the said sum of HK$3.6 million. It took PW1 about 2 hours to do so. During the time John had driven the car to various locations on Hong Kong Island, including Wanchai, Sai Ying Pun, and then returned to North Point and parked at the roundabout outside the Victoria Harbour North at Tin Chiu Road, North Point. All along Jack sat in the rear passenger seat next to PW1.

14.Having completed the counting and took the money, PW1 transferred 15 bitcoins to the bitcoin address provided by John. They waited there for about 15 minutes for confirmation of the transfer. After that, John said he would drive PW1 to North Point MTR station. 

15.After leaving the roundabout, instead of going to the MTR station, John drove the car towards Chai Wan. When PW1 asked why they were going in that direction, both John and Jack said that they were not familiar with the area and had driven on the wrong route. When they arrived at somewhere in Tai Tam Road, John suddenly made a U-turn and stopped at a lay-by. Up to that stage, Jack had all along been sitting at the rear passenger seat next to PW1.

16.At that moment, a black-coloured 7-seater pulled in right behind the Bentley. 3 South Asian males got off this vehicle and approached the Bentley. PW1 described one of them as “more muscular, wearing a light-coloured woolen Beanie (or woolen hat), another one was of slimmer built and he could not give any description of the 3^rd as he did not pay much attention to him. The more muscular man opened the rear door of the Bentley, pulled PW1 out, pressed him on the ground and took away the bag containing the HK$3.6 million cash. The mobile phone held by PW1, and another one he put in his trousers’ pocket, were also taken away.

17.The 3 South Asian men then boarded the 7-seater and drove off towards Chai Wan. John also drove the Bentley off with Jack towards the same direction, leaving PW1 alone at that location. During the whole robbery, neither Jack who was sitting next to PW1, nor John at the driver’s seat, did or said anything.

18.PW1 was very frightened. He ran towards a nearby building called Shan Tsui Court. There he met 2 uniformed police officers and reported the incident to them.

19.PW1 was shown part of P4[1], P5[2] and P6[3].  He identified Jack and John in these footages.

20.It is an admitted fact that D1 and D2 were arrested on 30 January 2021. PW1 attended 2 Identification Parades held on 4 February 2021 in which D1 and D2 took part separately. PW1 failed to identify either of them in those parades[4].

21.It is also an admitted fact that the white Bentley VN 5371 was found on 7 January 2021 outside the lobby of the Regal Riverside Hotel. No fingerprint or DNA evidence connecting D1 or D2 to the car had been found[5].

22.PW2, Mr. KWAN Chi-wai, was an employee of a now defunct Milways Money Exchange Co. Ltd. back in January 2021. The business of this company included bitcoin trading. PW2 testified that in the evening of 4 January 2021 he was contacted by a former customer, known as Mr. Simo. He had 1 or 2 previous dealings in small value of bitcoin, and had met face-to-face, with Mr. Simo prior to that date. He described Mr. Simo to be in his 30s or 40s, around 1.75 metres tall, fat built. On that occasion, Mr. Simo said he would like to sell HK$4 million worth of bitcoins to Milways.

23.In the evening of 5 January, Mr. Simo attended the office of Milways in Mongkok. PW2 recognized him upon his arrival. After confirming the transfer of 17.4 bitcoins by Mr. Simo to him, PW2 gave HK$4 million in cash to Mr. Simo.

24.The whole transaction in Milways, which lasted about 14 minutes, were captured on CCTV[6]. Part of the footages, and still-frame photographs from the footages[7] were shown to PW2. He identified Mr. Simo, who most of the time sat with him in a small room where the cash was counted and handed over. Mr. Simo was wearing facemask all the time but there were times when his facemask slipped down so that PW2 could see his face. PW2 had no more dealings with Mr. Simo since that date.

25.It is an admitted fact that PW2 attended an Identification Parade on 4 February 2021 in which D2 took part. He looked at the parade for about 8 minutes. When asked if he could identify anyone, his answer was “The person I paid transaction was not here.”[8]

26.PW3, Mr. LEUNG Chun-wing, is a forensic expert who worked in the Forensic Division of the Government Laboratory. He examined Exhibit P3, a “Hoodie” seized at D2’s residence upon his arrest on 30 January 2021, and made comparison with some CCTV images. An Expert Report prepared by him was admitted as P14. I shall deal with his evidence in more detail later.

27.PW4, Doctor CHOW Kam-pui, is an Associate Professor of the Department of Computer Science at the University of Hong Kong. He is an expert in bitcoin and bitcoin transaction related secure messaging system, and computer science in relation to bitcoin and bitcoin transactions. He provided an overview of what Bitcoin is. His evidence in a nutshell, which is unchallenged, is that the 15 bitcoins sold by PW1 to John on 4 January 2021 was part of the 17.4 bitcoins sold by Mr. Simo to PW2 the next day.

28.PW4 prepared an Expert Report, which is admitted as P13,in support of his evidence. When I went through this Report, I found that there were numerous typo mistakes, some of them could be understood easily while others could not be deciphered unless the error is rectified. In the course of his evidence, I asked PW4 to explain and correct some of the errors I have spotted. At the end of his evidence, I asked him to read through his Report again and inform me through the prosecution if he could spot further similar errors. I was informed the next day that there were indeed more mistakes that need to be rectified.

29.I enquired with Mr. Lee for the prosecution how come he did not notice these mistakes and how did he manage to understand the Report when he prepared his case with so many errors therein. He informed me that he did not read the whole Report when he prepared the case, he only read the parts which showed the figures (or diagrams).

30.PW5 Senior Police Constable 748 was attached to Tsuen Wan Police Station. His evidence was that at around 21:07 on 4 January 2021 D1 came to the Report Room to report as a bailee in a matter. He was the officer who dealt with D1. He had seen D1 before and on that occasion he had checked the ID Card produced by D1 and asked D1 to sign on the Record[9]. P11 were CCTV footages of the Report Room which captured the whole period from different angles when D1 made the report in the Report Room. His evidence that the man he dealt with that evening was D1 was challenged in cross-examination. It was contended by D1 that the man wore a facemask the whole time. PW5’s claim that he had asked the man to lower it for identification was not supported by P11. The fact that D1’s ID Card was produced did not mean that person was D1. The Record already contained a previous entry with D1’s signature there, so that the man could have just copied the signature in the Record. PW5 stood by his evidence that the man he dealt with that evening was D1.

31.Other more important evidence admitted by consent include the followings:

(i)  D2 was the subscriber of phone number 5548 5242 since 24 July 2018;

(ii)  A grey-coloured “Hoodie” (P3)  was seized from D2’s residence on 30 January 2021;

(iii)  “Med HK Trading Company Limited” was incorporated on 19 December 2016, with D2 as the sole director and shareholder. On 19 September 2021 the name was up-dated to “Simo & Co. Ltd.”;

(iv)  From 23 January 2020 to 22 December 2022 Simo & Co. Ltd. was the registered owner of a BMW X5 car, registration number WP 4901; and

(v)  During the periods material to this case, D2 or his company did not own any property, nor had any substantial income.

32.Apart from the CCTV footages mentioned above, several other footages were admitted by consent. P8 were footages from the Western Harbour Tunnel (WHT), the contents of which showed that the white Bentley VN 5371 passed through the booth from Kowloon to Hong Kong Island at about 17:04:44 on 4 January 2021, followed by WP 4901, the BMW owned by Simo & Co. Ltd. at 17:05:55, and then a black 7-seater registration number WK 982 at 17:05:59. The person sitting at the front passenger seat of this 7-seater was wearing an upper garment similar to the “Hoodie” P3 seized from D2’s residence. P21, another CCTV footage from WHT, showed that VN 5371 passed through the booth from Hong Kong Island to Kowloon at 20:45:57, followed by WK 982 at 20:51:57.

33.P9 were footages from the Shatin Hyatt Regency Hotel (Shatin Hyatt)  on the same day. There were at least 3 cameras showing different parts of the hotel but no description was provided for each angle. They showed that a person wearing a “Hoodie” similar to P3 carrying a bag arrived at what seemed to be a lift lobby at 21:33:00, followed by other persons shortly afterwards. All looked like South Asians. They emerged at another footage which seemed to be a corridor in the building. Another camera showing what seemed like the carpark entrance depicted WK 982 entering at 22:27:00 and leaving at 23:43:25.

34.P10 were footages from the Tai Lam Tunnel, which showed that VN 5371 passing through the booth towards Yuen Long at 00:58:20 on 5 January 2021, followed by WK 982 20 seconds later.

Defence Case

35.At the conclusion of the prosecution’s case, both defendants, through their Counsel, made detailed halfway submissions seeking to have the case against them terminated at that stage on the basis of the 2^nd limb of Galbraith[10]. Having carefully considered the evidence and submissions by the parties, I came to the conclusion that there is sufficient evidence to leave the case to the jury. I ruled that both defendants have a case to answer in respect of Charge 1 and D2 has a case to answer in respect of Charge 2.

36.Both defendants elected not to give evidence nor to call any defence witness.

Absence of D1

37.The trial commenced on 3 July 2023.  Evidence concluded on 14 July and I adjourned the case to 25 August for final submissions by the parties. The bails of both defendants were extended on existing terms until that day.

38.Upon resumption of the hearing on 25 August, D1 did not turn up. Ms. Herbert informed the Court that the legal team lost contact with D1 a few days earlier after having taken full instructions from him on the final submissions.

39.I noted from the Court record that the bail terms set by the District Court on D1 was made on 22 September 2022, which included, inter alia, that he must report to Kwai Chung police station between 9 pm to 12 midnight on the 1^st Sunday of each month. D1 appeared in Court on the 1^st day of trial on 3 July 2023 and turned up every day. His reporting time was amended on my Order to between 12 noon to 3 pm, other terms unchanged. I was initially informed by the prosecution that D1 failed to report on 5 August 2023. Apart from issuing a warrant of arrest against D1, I directed the prosecution to look into D1’s reporting situation and inform the Court on the next hearing, which was set on 6 September 2023.

40.Upon resumption of the hearing on 6 September, I was informed by the prosecution that in fact D1 had failed to report to Kwai Chung police station since February 2023. Mr. Lee submitted that the OC Case was not aware of this situation as Kwai Chung police station adopted a system, which was known as the police “intranet”, to alert OC Cases of this situation, which is different from the general practice within the police force, viz., by using memo and/or fax and/or telephone. I directed that in order to avoid the occurrence of similar incidents, the Department of Justice is to bring this matter to the attention of the Commissioner of Police and the Commander of Kwai Chung Police District for follow-up actions.

41.So far as this case is concerned, Ms. Herbert for D1 submitted that she could proceed with the remainder of the proceedings in the absence of D1 as we have reached the stage of final submissions and she had already taken full instructions on the matter. She cited authorities and submitted that under such circumstances the Court could/should continue in the absence of D1. Mr. McGowan for D2 objected to any further adjournment and Mr. Lee had no objection for the case to continue. Having considered all relevant matters, I am satisfied that the case should continue in the absence of D1. Up to today, the whereabout of D1 is still unknown.

The Issues in the Case

42.I now come to the prosecution’s case theory and the evidence in support of it against each defendant on each Charge. The starting point is that the bitcoin transaction between PW1 and John was a setup. The Robbery was part of a plan to take away the 15 bitcoins transferred by PW1 to John on 4 January 2021 without having to pay for them. Both defendants did not dispute that PW1 had been robbed.

43.For D1, it is the prosecution’s stance that he is Jack. If accepted, the evidence of his involvement is sufficient to infer that he was a party to the whole setup, including the Robbery. It is clear from the way Ms. Herbert conducted the defence case, including the halfway and final submissions, that D1’s position is that he is not Jack and even if that is the case there is insufficient evidence to draw the necessary inference that he was a party to the Joint Enterprise.

44.For D2, it is the prosecution’s stance that he is the person wearing the “Hoodie”, which the prosecution says was P3, onboard WK 982 and at the Shatin Hyatt. He is also Mr. Simo who sold the bitcoins to PW2 the next day. If that is accepted, basing on the principle of “Recent Possession”, there is sufficient evidence to draw the inference that he was 1 of the 3 robbers in Charge 1 and that he dealt with the said bitcoins with the necessary mens rea in Charge 2. It is again clear from the way Mr. McGowan conducted the defence case, including the halfway and final submissions, that D2’s position is that he is not the person in WK 982 or Shatin Hyatt, nor is he Mr. Simo. Even if that is the case there is insufficient evidence to draw the necessary inference that he was 1 of the 3 robbers, or in any way involved in the Robbery. There was no submission by the defence in relation to the mens rea aspect in Charge 2.

45.From the above observations, it is clear that there are 2 issues involved in respect of both defendants, viz., Identification and Joint Enterprise.

Analysis of the evidence

46.I direct myself that the burden of proof is on the prosecution. It is for the prosecution to prove each element of the offence against each defendant on each Charge beyond reasonable doubt. Defendants bear no burden of proof. They are not required to prove their innocence.

47.Both defendants elected not to give evidence or to call any defence witness. It is their right and no adverse inference would be drawn against them. However, this means that there is no evidence to undermine, contradict or explain the evidence presented by the prosecution[11].

48.I also direct myself that I have to consider the case against each defendant on each Charge separately.

49.Both defendants have a clear record. I direct myself in accordance with the principles applicable to this issue.

50.The nature of the Joint Enterprise involved in this case falls within the “basic joint criminal enterprise” described by Ribeiro PJ in HKSAR v Chan Kam Shing[12], which “involves the co-adventurers simply agreeing to carry out and then executing a planned crime”.

51.The defence did not challenge the credibility or reliability of PWs 1 to 4. I find them to be honest and reliable witnesses. As mentioned in paragraph 30 above, D1 challenged the credibility of PW5. Having heard his evidence and observed his demeanour in Court, I am satisfied that he is also an honest and reliable witness.

Issue on Identification

52.I shall first deal with the issue of Identification on each defendant.

D1

53.The only evidence directly linking D1 to the case is his reporting to Kwai Chung police station at about 21:07 on the day of the Robbery. The whole process of this reporting procedure has been captured by P11. PW5 was responsible for making the Record of this reporting. He said he had seen D1 before when the latter reported for bail in the same station. I am satisfied that this witness had verified the identity of the person reporting and it was in fact D1. But that does not provide the answer the prosecution is seeking, that D1 is Jack.

54.Apart fromP4 to P6, the remaining CCTV footages were not shown to PW1. There was therefore no identification evidence from him as to the persons appearing in those footages, including P11. In order to provide the answer as alleged, the prosecution asks the Court to compare Jack as identified by PW1 in P4 to P6 to D1 in P11, and 1 of the persons as seen in P8.

55.The principles governing this exercise can be found in AG Reference (No.2 of 2002)[13], a decision by the CA in England. Of the 4 scenarios as stated in that case, only the 1^st scenario is applicable to the present case, which is stated as follows: “where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock”. These principles have been cited with approval in Hong Kong, e.g. HKSAR v Tagao Saudee Abad[14], in which the CA extended the principles to comparison of video images also. The CA stated:

“Where recognition evidence is relied on there will not usually be any admissibility issues other than relevance and authenticity of the tape. Once these are satisfied the only issue will usually be the weight to be given to the evidence. However, where jury comparison is the means of identification, then the recording or photo must be suitable, in terms of its clarity and what it shows of the person to be identified, of serving its purpose of being a tool for identifying the defendant…”[15]

56.The limitation as stated in this principle is that the image(s)  must be sufficiently clear for the jury to perform the comparison exercise. An illustration of this limitation can be found in the CA decision in HKSAR v Wong Cho Shing[16] in respect of D4 in that case. There was no live witness identifying D4. The learned trial Judge performed the comparison himself from images from an open-source video footage. The CA allowed the appeal of D4 on the basis that the quality of the video images upon which the Judge relied for this identification was not of sufficient clarity for that purpose.

57.In the present case, there is only 1 footage showing the facial features of Jack. It can be found in P6 from 21:06:13 to 21:06:22 when Jack alighted from the Bentley. This footage lasted for 9 seconds with only about 1 second when his face could be clearly seen from the front. It was under dim street lighting. It can also be seen that he was wearing a dark-coloured jacket and a pair of blue jeans. This is hardly of sufficient quality for any meaningful comparison with other images or D1 in the dock. Furthermore, in the other relevant footages, in particular P11, the person under scrutiny was wearing facemask all the time.

58.Identification by way of photograph or video image is not confined to facial feature. In Tagao Saudee Abad the CA stated:

“But, of course, there are other means by which a person may be identified and simply because the image of the person’s face is not clear does not mean that it becomes impossible to identify the person. For example, it may be that a person’s clothing is particularly distinctive because of its colour, type, design, patterns or markings and it is proven that the defendant possesses such clothing. It may be that the defendant possesses unusual bodily features, wears particular jewellery or walks with a special gait. A witness who knows a defendant well may be able to point to features about him which make him readily recognizable to the witness.”[17]

59.In P5, Jack was seen alighting from the Bentley and walked towards the waterfront between 20:05:39 and 20:06:02, a period of 23 seconds. He was seen returning to the Bentley between 20:14:20 to 20:15:00, a period of 40 seconds. These footages were taken under dim streetlight and at a distance. P11 captured D1 entering, staying and leaving the Report Room between 21:07:14 and 21:08:44, a period of 1 minute 30 seconds, with sufficient lighting. Having carefully studied these footages, I agree with the prosecution that there are similarities between Jack and D1 in terms of built and clothing worn. I do not agree there was sufficient unusual bodily features or special gait between the images.

60.But against that there were dissimilarities also. It is clear from P6 that Jack was wearing a pair of blue jeans, whereas in P11 D1 seemed to be wearing dark-coloured trousers, not blue jeans.

61.Other evidence also comes into play. The Bentley was seen crossing WHT from Hong Kong Island to Kowloon at 20:46, D1 appeared at Kwai Chung Police Station at 21:07. It would be very difficult, but of course not impossible, for Jack, who supposedly was onboard the Bentley after the Robbery, to appear at the police station and changed some clothing along the way. Another consideration is that it is obvious from the evidence of PW1 that he had many opportunities to see the face of Jack prior to, and on the day of, the Robbery. He had spent over 2 hours with Jack at the rear passenger seat of the Bentley on 4 January when apparently no facemask was worn by Jack. Yet in the Identification Parade held about 1 month later, he could not identify D1 who was in the Parade.

62.As to the footages from the Shatin Hyatt[18], suffice for me to say that so far as the person the prosecution alleged to be D1 or Jack is concerned, they were not of sufficient quality nor duration for any meaningful comparison.

63.Having considered all relevant evidence and submissions by the parties, I am not satisfied that there is sufficient evidence to establish, to the necessary standard, that D1 is Jack as alleged by the prosecution.

D2

64.The issue of Identification against D2 stands on different footings as compared with D1. There was no direct identification of D2 by any witness nor was there any direct evidence linking him to either the Robbery or Mr. Simo. The prosecution relies on comparison of CCTV footages and other circumstantial evidence to support its case that D2 was onboard WK 982 prior to, and appeared in the Shatin Hyatt shortly after, the Robbery and that he was Mr. Simo who sold the 17.4 bitcoins to PW2 at Milways the next day.

65.On image comparison, I shall adopt the same principles as mentioned above. So far as circumstantial evidence is concerned, I bear in mind the comments by Chief Baron Pollock in The Queen v Exall[19], which had been cited with approval in Hong Kong by the CFA in Kissel v HKSAR[20]and the CA in HKSAR v Lai Kwok Hung[21]:

“It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.”

66.First, there is the grey-coloured “Hoodie” P3, which was seized from D2’s residence upon his arrest on 30 January 2021. A person sitting in the front passenger seat of WK 982 when it passed through WHT towards Hong Kong Island at 17:05:59[22], shortly after the Bentley had passed through, was seen wearing a similar Hoodie. Also, a person arriving at the Shatin Hyatt with a bag in his hand at 21:33:00[23] was also wearing a similar Hoodie.

67.PW3, the forensic expert, was engaged to compare P3 with the Hoodie worn by the passenger in WK 982 in P8. He prepared an Expert Report P14 on this issue. His conclusion was that “The probability that the top worn by [the passenger] could have been [P3] could not be eliminated”[24]. In cross-examination, he agreed that P3 was of low value and on mass production. He did not know where and how many similar Hoodies had been manufactured or where they were available on sale. As such, his evidence was of very limited value. He was not asked to view the image of the man in P9, so there is no expert evidence in relation to the Hoodie worn by the person at the hotel as compared with P3.

68.A point to note is that in fact PW3 examined 2 footages. Apart from the image of WK 982 at 17:05:59, he also examined another footage of WK 982 with the same passenger onboard later in the evening when the car passed through the same tunnel from the opposite direction. In the course of his evidence, it was discovered that this latter footage was not included in P8. Mr. Lee applied to have P14 amended to exclude those parts referring to this latter footage. The amended Report was admitted as P14a. However, at a subsequent stage of the trial, Mr. Lee re-introduced this footage as P21, but for a different purpose. There was no application by him to have the part of P14 which was deleted to be admitted again as evidence in the case.

69.I accept that the Hoodie worn by the person with a bag at the Shatin Hyatt as seen in P9 is of similar colour and pattern as P3. This may go to support the prosecution’s assertion that the man was D2, but on its own it falls far short of the necessary standard required to make any adverse inference against D2.

70.The prosecution also relied on P12, the CCTV footages of Milways. These footages demonstrated that PW2 was in close quarters with Mr. Simo for about 14 minutes, being together in a small room. During the period, there were opportunities for PW2 to see the facial features of Mr. Simo. PW2 also stated that he had met Mr. Simo once before. However, when PW2 attended an Identification Parade on 4 February 2021 with D2 taking part, he, after having viewed the parade for about 8 minutes, not only did not identify D2, but said that “the man I paid transaction was not here”. I take it to mean the person who sold the 17.4 bitcoins to him on 5 January 2021 was not in the Parade.

71.Other evidence on this issue included the fact that the BMW WP 4901 registered under D2’s company was seen crossing WHT at 17:05:55, shortly after the Bentley had passed through. The prosecution says it was no co-incidence for this to have happened.

72.As pointed out before, a person wearing a Hoodie similar to P3 appeared in Shatin Hyatt not too long after the Robbery, with a bag in his hand. This was seen in P9. PW1 was not shown this footage, so there is no evidence as to whether he could identify the bag carried by this man was the one containing the HK$3.6 million taken away from him during the Robbery. PW2 was not shown this footage either, so there is no evidence from him as to whether that man bear any similarity with Mr. Simo.

73.The descriptions of the 3 robbers by PW1 provided no support to the prosecution’s assertion that D2 was 1 of the 3 robbers.

74.Having taken all relevant evidence and submissions by the parties into consideration, and bearing in mind the principles applicable to circumstantial evidence mentioned above, I am not satisfied that there is sufficient evidence to establish, to the necessary standard, that D2 is Mr. Simo. There is also no evidence to link him to the Robbery at all, not to mention that he was 1 of the 3 robbers.

Other Observations

75.The above findings on the issue of Identification are sufficient to dispose of the case. I will not proceed to deal with the 2^nd issue of Joint Enterprise in relation to Charge 1 and the issue of mens rea in relation to Charge 2.

76.However, before I make my final decision on the Verdicts, I would like to make a few observations.

77.When the prosecution opened its case, I clarified with Mr. Lee on the basis of the allegations against both defendants in respect of Charge 1. He informed me that it was on the basis of Joint Enterprise against both defendants. However, at the stage of closing submissions, Mr. Lee submitted it was the prosecution’s assertion that D2 was in fact 1 of the 3 robbers[25]. This assertion had never been suggested in the course of the trial and the case of D2 as presented by Mr. McGowan had always been on the basis of Joint Enterprise, rather than him being the actual robber. On the evidence there is simply no basis to make this assertion and no explanation from Mr. Lee has been forthcoming as to why there is such an apparent change of stance by the prosecution.

78.In the Opening there is an assertion by the prosecution that D2 used phone number 5548 5242 to contact PW2 in relation to the sale of the 17.4 bitcoins to PW2 in Milways[26]. There is an admitted fact that D2 was the subscriber of phone number 5548 5242 since 24 July 2018. During examination-in-chief PW2 was asked what telephone number did Mr. Simo use in the transaction. He, quite honestly and directly, said he could not remember now as it was too long ago but it was recorded in his witness statement. With that answer Mr. Lee did not pursue the matter and moved on to other matters. There was no attempt to lay foundation for a memory refreshing exercise nor was the Court engaged to make any determination. As such, there is no admissible evidence to establish this assertion in the Opening, which, if I may add, could go a long way to support the prosecution’s case against D2, at least on Charge 2.

79.On the matter of CCTV footages, as mentioned earlier, a total of 10 CCTV footages with over 172 hours of coverage were admitted into evidence, with many different camera angles involved in some of them. Apart from the location where each of the footages was obtained, there was no assistance provided by Mr. Lee as to what they depicted, what each angle of the camera was located or what part of them the prosecution said were relevant to the case. On the 5^th day of trial, upon my direction, schedules were prepared to assist the Court as to which part of these footages the prosecution would be relying upon and what they depicted (MFI-2 and MFI-3). As it turned out, according to MFI-3, only a total of 64 minutes 44 seconds of these footages were relied upon by the prosecution.

80.Another problem is about P7. As per the Admitted Facts[27] these footages were taken at Shan Tsui Court on 4 January 2021 between 19:30 and 21:00. There was no other information provided about these footages. This exhibit was not shown to PW1, nor any other witness. When I examined this exhibit, I could not decipher where in the building the camera was located, in what direction the camera was pointing or what the footages were supposed to have recorded. I cannot find any meaningful part of these footages relevant to the case. When I enquired with Mr. Lee, he attempted to explain the contents without any supporting evidence. I declined to accept his explanations from the Bar table.

81.Another issue is in relation to P9. There was a camera showing apparently a corridor within the hotel with no evidence provided as to what it depicted. When I asked about this, Mr. Lee invited me to take judicial notice that since there was on the wall numbers starting with 11, it must be depicting the corridor on the 11 Floor of the hotel. Again I declined this invitation as I do not find this to be within the province of judicial notice.

82.These are just some of the more glaring examples on how the prosecution’s case was presented in this case. The list can go on. Suffice for me to say that the prosecution’s case has been badly prepared and very poorly presented.

Verdicts

83.Basing on the above analysis, on the evidence as presented in this case, I find that there is insufficient evidence to establish that either D1 or D2 was involved in the Robbery. I find both defendants not guilty of Charge 1. I find that there is insufficient evidence to establish that D2 had dealt with the 17.4 bitcoins the subject matter of Charge 2, D2 is acquitted of this Charge also.