HKSAR v. Chan Yiu Hung
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DCCC1170/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1170 OF 2011 ----------------------
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--------------------- Reasons for Verdict --------------------- 1.Defendant, you pleaded not guilty to a single offence of burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap.210. 2.The prosecution case was as follows. 3.The Aberdeen Fishball and Noodle Restaurant was and is located at the ground floor, 242 Sai Yeung Choi Street South, Mong Kok. 4.At around 1 am on 23 June of last year, female Ng Yim-kam, who appears as PW1 on the indictment, the employee of the restaurant, secured the roller shutter and left the premises. 5.That day, at around 6.20 am, Kwok Man-fung (PW2), the chef, was the first to return to work and find signs of ransacking of the restaurant. The door of the room behind the cashier counter had been prised. 6.The owner, Cheung Choi-chun later found a safe and two coin boxes containing a total of $60,000 was missing. 7.A report was made to the police. The burglary 8.At around 9 pm on 22 June of last year, Francis Edward Santos, who is PW4 in this case, received a call on his mobile phone from you, Defendant. You asked if he wanted to make money, which he took to mean commit a burglary. He agreed. 9.At around 12 midnight on 23 June 2011, you again called his mobile and told him to bring gloves, torches and screwdrivers, and to wait for him outside the restaurant. 10.PW4 went there and got into a private car driven by you. You told him they would burgle the restaurant and that the lock of the roller shutter had been opened. 11.Around 15 minutes later, you stopped the car at the end of Sai Yeung Choi Street South, and PW4 got out and walked to the restaurant. 12.About 1 am, PW4 pulled up the roller shutter and entered. Inside, he searched the cashier counter and tried to prise up the door of the room behind the cashier counter, but failed. 13.He informed you of this by mobile phone. You told him to wait and another person would come to assist. 14.You then called Chan Sze-kong (PW5) and asked him to join him. PW5 understood this to mean burglary. He agreed. 15.You then drove your car and picked up PW5 from his home in Tai Kok Tsui. 16.When you all reached the restaurant, PW5 saw three other males, namely, Lan To Yee, Ah Pong and “Taxi Driver”. He had met them before. 17.PW5 got out of the car near the restaurant. You instructed him to take out a trolley from the boot and let you know when he arrived at the entrance of the restaurant. 18.PW5 did this, phoning you on arrival. PW4 then opened the roller shutter from inside and let PW5 in. Together, they prised open the door behind the cashier counter and found a safe and two metal boxes. After ransacking the two metal boxes, they removed the safe and put it on the trolley. 19.Over the phone, you told PW5 to cover the safe with black plastic bags, take it out and board a taxi. This they did, placing it in the boot of the taxi. They went to PW5’s house in Tai Kok Tsui. They took it inside. 20.Ten minutes later, you and Lan To Yee came to PW5’s home. You asked if PW5 had tools to open it, and PW5 said, “No.” You then said you would return later with tools. PW5 then went to sleep. 21.At around noon, PW5 woke up to see you and Lan To Yee in his home. The back of the safe was broken open. PW4 and PW5 were each given a share of the cash. The arrest 22.DPC 7065, who appears as PW6, arrested PW5 on 25 June last year and searched his residence. Inter alia, he found a plastic bag, three bank passbooks, a ledger belonging to the restaurant and a user manual for the safe. Sing Tak-chau, a member of staff of the restaurant, identified them as items stolen from the restaurant. 23.On that day, 25 June, PW6 conducted a search of your residence at Room 13, 13th Floor, Chung Sing Building, 63 Chung Wui Street, Tai Kok Tsui. The items listed as P1 to P16 were found, including, as I have said, the safe. 24.On 25 June, PW4 was arrested by PW5 at the Nan King Guest House, Jordan. The items listed were found, being P18 to P30, inclusive. 25.The CCTV images from PW5’s building showed on 23 June the appearance of PW4, PW5 and you shortly after the burglary of that day. 26.On 27 June, your were arrested outside Hung Hom Police Station by PW13 for an offence of burglary. You remained silent under caution. 27.The prosecution case comprised the admitted facts, being P31, and two live witnesses, being PW4 and PW5. 28.The admitted facts were placed into evidence in accordance with the provisions of section 65C of the Criminal Procedure Ordinance, Cap.221. 29.They establish the following:
30.On 27 June 2011 outside Hung Hom Police Station, you were arrested by DPC 6821 for burglary. Under caution, you remained silent. 31.In this case, given the line of defence, it is crucial to examine in brief the live evidence that was given. 32.PW4, Francis Edward Santos gave evidence. 33.He said he pleaded guilty to the burglary in February 2012. He had known PW5 for about eight years prior to this incident of 23 June 2011. 34.On the evening of 22 June 2011, he was at PW5’s home, which is Room F, 13th Floor, 63 Chung Wui Street, Tai Kok Tsui. He received a phone call from Go Lou(?) whom he had known for four to five years at that time. He said he met him from time to time, and described him. 35.Without objection from defence, PW4 identified you, the defendant, as Go Lou(?). 36.You called him on his mobile and asked him if he wanted to work, which PW4 said meant to burgle. He agreed and was told to wait for further instructions. 37.Around midnight you called and told him to go to Sai Yeung Choi Street and bring along working gloves, torch and screwdrivers. 38.PW4 placed the items in a rucksack and upon arrival there, saw you in your car, which he described as a Honda Accord and which he thought was grey. 39.PW4 boarded the car. You asked him if he had brought the equipment and told him to take an additional screwdriver from the backseat, which he did. 40.You then drove round Sai Yeung Choi Street while you explained where he had to burgle and what was inside. 41.You pointed out the restaurant to him. You stopped at the end of the street and PW4 alighted and you drove off. PW4 was instructed to wait outside the restaurant for five to ten minutes, pretending to look around for a taxi. 42.You then phoned to say that you were nearby and that the coast was clear. 43.PW4 then opened the shutter. You had already told him it was opened. He entered and went straight to the cashier counter, which he ransacked. 44.Finding no money there, he tried to prise open the door to the room just behind it. This was as instructed by you, who phoned him. He used two screwdrivers and some other tools he had found in the restaurant, but failed to open the door. 45.He was in contact with you and informed you of this. You said you would send someone to assist him. 46.After 15 to 20 minutes, you called him to say PW5 was outside and he should open the gate for him. 47.Together, they forced open the door. On the innermost wall they found a safe. At the front of the room, they found two metal boxes containing cash, both coins and notes, which PW4 poured into his rucksack. They dragged out the safe and put it on the wooden trolley which PW5, Da Gau(?), had brought with him. They used black trash bags to cover it when they removed it from the restaurant. They pushed it to the entrance and you informed them the coast was clear. 48.They left and no one else was outside. They pushed it to the end of the road, where PW5 waved down a taxi. PW4 said he saw you about 20 feet away, looking out. 49.They then went to PW5’s home at Room 13, 13th Floor, Chung Sing Building, Chung Wui Street, Tai Kok Tsui, Kowloon. By then, it was about 3 am. 50.They used the trolley to push it into the flat. Then, PW4 emptied the contents of his rucksack onto the floor and went to shower. 51.On his return, you were already present and had divided the cash into four shares. PW4 said he saw no one else there. 52.He then went to PW5’s room to change. He got $3,000. You said you would return the next day with tools to open the safe around noon. 53.PW4 said that he himself left at about 5 am and returned around 2 pm. Only PW5 was there. PW5 said that you just left and gave him a further $2,000 as his share from the safe. 54.PW4 then took us through the photographs of the scene and the exhibits. He also produced sketches of the restaurant. 55.He then viewed the CCTV footage of PW5’s building and identified the men to be himself, PW5, you, and another person, whom we later found out to be Lan To Yee. 56.They basically showed him leaving to commit the burglary, PW5 after that, and their arrival back with the safe, and then you with the other person. 57.PW4 was then cross-examined, firstly as to what he hoped to gain by giving evidence. 58.He said he did not think it would entitle him to a discount. PW4 confirmed he did not write Chinese and a letter purportedly signed by him was not written at his request. That is, he had no idea if PW5 had written it, and the signature was wrong. He confirmed he and PW5 had mixed in prison in dayrooms but they were separated. He was a friend whom he had known for seven to eight years and lived with him. He accepted he was close to PW5. 59.Referring back to the letter, he said he had no idea who wrote it, sent it, nor had the contents been discussed with him. He accepted the police had come to see him about the letter, but they had not shown it to him. That letter was D1. 60.He disagreed that PW5 wrote it and maintained he knew nothing about it. He did not know PW5 was going to give evidence for the prosecution. He accepted that after the letter, PW5 did discuss it with him and PW4 said it was because he wanted everything to be out straight. 61.He also accepted that in his interview of 26 June 2011, he had lied to the police about your involvement in another burglary at another restaurant on 30 April 2011. You were not in Hong Kong at the time and PW4 accepted that. He said he did this because he was coerced and did not commit this offence. He claimed the police asked him to make up a story and put you more or less just as part of the picture. 62.His allegations of you being involved in other offences, he accepted, were also untrue, fictitious stories, but he claimed to have been coerced, not done by his free will. 63.You had been arrested for the seventh case and PW4, police told him to improvise and accept six more occasions. He was not bothered by this being untrue as he was coerced. 64.He said he believed the police came to see him about the letter on 15 August 2011. 65.Only in March of this year did he decide to give a non-prejudicial statement. He accepted he again falsified information and nominated persons not involved, as he had no other option. He accepted this charge to be on the same lines as others. 66.He denied that while in custody he had discussed the non-prejudicial statement with PW5, as they had been on special watch and separated. He said he thought sometime prior to being put on special watch last year, PW5 may have mentioned it. He said that after advice from Mr Polson, he decided to tell the truth. 67.He agreed that someone had mentioned he would get a reduction for becoming a prosecution witness. In some ways, this interested him and prompted him to tell the true facts. He said he had a rough idea of the discount and put it at 15 to 20 per cent; this was a guess. He did not really consider himself to be a supergrass. He said he did try to be truthful. He thought he might get 2 months off his sentence. 68.Referring to the return to PW5’s house with the safe, PW4 said he did not see your arrival but when he came out of the shower, only you and PW5 were there. If anyone else had been there, he agreed he would have seen them. 69.He agreed that photo 7 of book 4 (the CCTV of the lift lobby) showed Lan To Yee with you, and photo 8 in the lift. However, he said he had no idea what happened to Lan To Yee and never saw him there. It must mean Lan To Yee stayed outside. 70.He disagreed that it was you who remained outside on the instructions of PW5 or that Lan To Yee entered at around 4 am. 71.He did not know if PW5 had borrowed money from you, Defendant, and denied that you had come to collect it. He said that the phone call from you was received while he was at PW5’s place, not while at the girlfriend’s in Jordan, as he told police on 29 June 2011 in an interview. He said he had said this because he was mixed up. 72.He denied he shared a cell with PW5 after the arrest. He accepted he and PW5 did meet in the dayroom at Lai Chi Kok, but not regularly. 73.He did not think he was easily influenced and disputed he was implicating you for his own reasons. 74.He was then re-examined and pointed out that the signature on D1 was not his: his name was “Santos” and not “Santo”. 75.PW5, Chan Sze-kong then gave evidence. 76.He pleaded guilty to the offence in December 2011. PW4, whom he had known for about six to seven years, had also pleaded guilty. At that time he resided at an address in Tai Kok Tsui. 77.On 27 June, he was at home alone, PW4 having earlier gone out to work. At the time PW4 lived with him. He had gone out at about 1 am on 23 June. 78.Later, you, whom he had known for about three to four years, phoned him. 79.He then identified you. 80.You told him Santos had gone inside and understood he was talking about burglary. PW5 then called PW4, who said the door could not be opened. PW5 said he did not know what door. PW4 asked him to come as soon as possible with more tools. 81.PW5 said he hesitated as to whether to assist. Then, you called him, swore at him, and said if he did not do it, you would get someone else. PW5 said he would do it and would take a wooden trolley which you had left at his place. 82.He went downstairs by lift to find you and Lan To Yee waiting in the car. He took the trolley to the car, which seems to have been an Accord. You drove off. 83.Firstly, you all went to Kwai Chung to get some screwdrivers, then to Mong Kok. You stopped at Sai Yeung Choi Street South and told PW5 to look three to four shops to the Aberdeen Fishball and Noodle Restaurant. 84.After a brief conversation, PW5 pocketed the tools and took the trolley. He walked to the restaurant and the door opened. You waited in the car and called Santos to open the door for him. 85.PW5 went in, calmed down for a while, and then heard you and Lan To Yee giving instructions to Santos over the phone. These were instructions on how to open the door. 86.They did open the door by the cashier counter and entered. PW4 said there was a safe which, after further instructions from you, Defendant, they put upside down on the trolley and pushed to the gate, where they awaited further instructions. 87.You told them by phone to pull up the gate and get out. When they did so, PW5 said he saw a taxi to the right, which had been directed over to them by you. They loaded the safe into the boot and returned to PW5’s home to wait for you. 88.Two to three minutes after they took up the safe, you and Lan To Yee entered the flat. You took everything from Santos’ bag and gave three to four thousand to each of them. Lan To Yee was there too. He said Santos was out counting the coins this time. Lan To Yee asked if he had tools and PW5 said, “No.” 89.You said that they would open the safe tomorrow. After this and distributing the money, you both left. PW4 was still there. 90.The next day in the afternoon, you returned with Lan To Yee and tools. PW5 was still asleep. He said you were cutting the safe when he woke up. Santos was not there, so he called him. 91.You had already left when Santos returned. They each received a few thousand dollars more. 92.PW5 was then taken through various photographs and parts of the CCTV, identifying relevant things and people and activities. 93.He was then cross-examined by Mr Cahill. 94.He agreed he did not like you. 95.Then, turning to the results of giving evidence, he claimed it would enhance the sentence as there was a group of them. The benefit of giving evidence, he said, was because you had done it. He then agreed he thought he would get a reduction of one-third. 96.He said he could not recall when he decided to give evidence, but it was not shortly after arrest. He gave his non-prejudicial statement on 19 September 2011. 97.He said he had not discussed his evidence with PW4 because they were separated by CSD. The police too had separated them. Even between 26 June and 19 September 2011, he said he had no contact with PW5. 98.Looking at D1, PW5 maintained it was the first time he had seen it nor did he know who had written it. 99.He accepted his relationship with PW4 was close. He was a good friend and they lived together. He had no idea when he was in custody that PW4 had been approached by the police to make a witness statement and did not know he had done so. He agreed that he did want to speak with Santos as he was his friend. He wanted to “share soul” with him, and did not communicate with him through other persons. 100.PW5 said he did know Santos made a witness statement the same time he did, because just before he came to court in December, he was given a copy of it. It was, in fact, it turned out, his record of interview with the police and he could compare what he said, and he had that for about a month, then threw it away. 101.He said he wrote to the police to offer to be a prosecution witness. 102.Then, PW5 said it was in August he got a copy of Santos’ statement, but he had thrown it away by the time he made his non-prejudicial statement on 19 September. 103.He said it was only when he came to court the last time that he knew Santos was a tainted witness. 104.He confirmed that on the night of the burglary, he got a call from you and you picked him up. Also, Lan To Yee was in the car. He said he did not recall if he mentioned seeing Lan To Yee in the car or not in his statement. He did see him at the scene with others. 105.He also ultimately accepted he failed to mention going to Kwai Chung prior to Mong Kok. He mentioned seeing others there at the scene. Both Lan To Yee and you gave him instructions. 106.Also, he only said the taxi was outside the door and did not mention it being directed to them by you. 107.At the flat, you and Lan To Yee came up and you distributed the items from the bag. Santos was counting coins at the time. He agreed that his witness statement made not mention about distributing the coins. 108.He denied that he had not told the truth and insisted you were there. He denied that you had come to the flat to settle the debt he owed you nor that only Lan To Yee entered the flat. He denied handing coins to you when you were outside the flat. He denied that you came the following day to collect the balance. 109.PW5 was re-examined. 110.He said he did not mention Lan To Yee’s presence in the vehicle as he was not arrested. Also, there was no point in mentioning going to Kwai Chung to pick up the screwdrivers. He had forgotten at the time that you had directed the taxi to come to him. 111.At this point, Mr Cahill applied to reopen cross-examination as he had overlooked a matter. Mr Wong objected to that but I ruled in the interest of justice and fairness that Mr Cahill should be allowed to do so. 112.Mr Cahill put a document to PW5, which was D2, which he accepted he had written. It was written to one Wu Chi-man(?), nicknamed “Tai Ma”(?). It urged him to give evidence against you. PW5 maintained he was only urging him to tell the truth as you were doomed. 113.He was re-examined but not at length. 114.The prosecution case was then closed and Mr Cahill made a submission of no case to answer. 115.For reasons which I gave, I ruled that the prosecution had established a prima facie case against you, and you had a case to answer. The submission that was made was based on the second limb of Galbraith. 116.Mr Cahill then informed the court that you had been full advised as to your rights and had elected not to give evidence nor to call any defence witnesses. 117.However, admitted facts, D4, were read into the record. These related to your travel record. 118.Mr Wong, in accordance with accepted practice, where a defendant has not given evidence, made no final submissions. 119.Mr Cahill adopted his submissions made in the no case to answer submission and made supplemental remarks to the court. These I have taken fully into account when reaching my verdict. 120.I turn now to the verdict. 121.If you are to be convicted, Defendant, the onus is squarely on the prosecution to prove beyond all reasonable doubt that you were an active party in the burglary. To that end, they rely on the evidence of PW4 and PW5, supported by the CCTV footage. 122.It has to be said, and squarely faced, that both PW4 and PW5 were far from perfect witnesses, unappealing and demonstrably fallible. 123.PW4 showed a clear tendency to dissemble over the discount he was hoping to receive for giving evidence against you, as did PW5. 124.It is also clear from the evidence that PW4, that is Santos, had purported to implicate you in burglaries you clearly could not and had not committed, as you were not even in Hong Kong. I refer to the admitted facts. 125.Defence has made much of the document, D1. However, it is doubtful that this can even be regarded as a full exhibit, as no one has produced it nor has it been adopted by anyone as to its author. 126.I am entirely satisfied on the evidence that neither PW4 nor PW5 either wrote it nor had anything to do with it. I revert to what I said in my ruling on the submission of no case to answer: it is simply a mysterious document which does not assist anyone and it does nothing to undermine the evidence of PW4 nor that of PW5. 127.D2, the second document produced, whilst being clearly written by PW5 on his own admission to a person named Wu(?), whom we do not know, goes no further than an exhortation to give evidence and, as PW5 says, tell the truth. Whilst one may and should question why PW5 was so keen to see you convicted, there is no question in my mind of this being an attempt to suggest to the recipient to give false evidence. The wording does not lend itself to that interpretation. 128.PW5, for his part, gave evidence which differs from the version he gave in his non-prejudicial statement of 19 September on certain points. However, the differences tend to lie in omissions from the statement, not blatant contradictions: an omission that Lan To Yee was in your car, an omission that they first went to Kwai Chung to pick up screwdrivers, an omission that you directed the taxi to the front of the restaurant.129.I accept his explanation for these omissions as being true. 130.I note also the contradictions between the evidence of Santos and PW5, most notably, whether or not Lan To Yee entered PW5’s flat after the offence and what PW4 was doing when you arrived, and in regard to the catching of the taxi. These, in my opinion, are not material but peripheral to the main acts. 131.I am also conscious and aware and duly note the attitude of PW5. He appeared as aggressive, angry and almost dismissive; that he bears grudges against you is all too apparent. He maintains his interest in giving evidence is to ensure justice is meted out to you, not to frame you. In this, he was unshaken. This is supported by the document, D2, to some extent. 132.Thus, I conclude that, and I repeat, PW4 and PW5 are far from perfect or model witnesses. I, therefore, approached their evidence with great caution and scrutinised it very carefully indeed. 133.PW4, as I said, had in the past lied to the police about your involvement in offences. His explanation was that he was subjected to coercion. The court, as a matter of record, found the prosecution not to prove the contrary beyond all reasonable doubt and I am satisfied that what PW4 has said on this point is true and that he was coerced. 134.In respect of PW5, it is, of course, of concern that he was given a copy of PW4’s cautioned statement prior to giving his non-prejudicial statement of 19 September. How and why this occurred is not clear and it is one into which the prosecution should look. 135.Whilst far from being fatal to the credibility of the evidence and it is clearly not desirable, however, taking all factors into account, including his disposal of it prior to the non-prejudicial statement, I find it did not impact upon his truthfulness nor on his accuracy. 136.I can find no support for any suggestion it influenced his version in any way. Therefore, I disregard this anomaly as of minor importance. 137.The CCTV footage, whilst this in itself is not probative of your guilt or otherwise, the images do dovetail with the evidence of both PW4 and PW5 on material points. This evidence was admitted by agreement and both PWs took us through various images in the lobby and the lift of PW5’s premises, without challenge. A full description is given by both and there is no need for me to repeat it at length. 138.In a nutshell, what is shown is the departure of PW4 at some time after 1.15 am with his bag of implements. Some time after 2.45 am, PW5 follows with a wooden trolley. Just before 4 am, Santos and PW5 return with the safe on the trolley, and about two minutes later, you and Lan To Yee arrive, and in my opinion, this cannot be mere coincidence; it is clearly in accordance with the organisation of the burglary. You and Lan To Yee then leave after about half an hour. You and Lan To Yee then return around 1.15 am the next day, leaving after about 40 minutes. Finally, at around 2.48 am, PW4 arrives back.139.This, as I said, is entirely corroborative of PW4 and PW5’s version of events. 140.The question then I have to ask myself is whether the case against you is proved beyond all reasonable doubt, based on the evidence of PW4 and PW5, as supported by the CCTV footage. 141.I have identified and referred to the problems of their testimonies, which transcend the normal need to be careful with the evidence of co-defendants giving evidence in order to receive a further discount from sentence. 142.In this case, I do accept what they have said in that there is a distinct element of ensuring that you did not get away with it scot-free and face punishment as they did. Both PW4 and PW5 made this point, PW5 more forcefully. What they were, in fact, exhibiting was the virtuous manifestation of honour amongst burglars, to which a discounted sentence was secondary. 143.An important function of the trial court, be it a single judge sitting alone or the jury, is to observe, assess and analyse not only what is said, but the manner in which it is said. 144.My overall impression is supported by the fact that despite the problems in respect of this charge, both PW4 and PW5 were telling the truth and were accurate on important issues. In fact, I found as a matter of fact that the differences between their versions were more probative of truthfulness than if such differences had not been present, which would have pointed, in my opinion, to an indication of tailoring and contrivance to falsify the account. 145.On material facts, their evidence is mutually corroborative to a very high degree. This is fortified by the support for the sequence of events as related by them shown by the CCTV footage from PW5’s building. Whilst that evidence proves little in itself, when set alongside the evidence of PW4 and PW5, it is in my opinion, entirely corroborative. 146.When your version and explanation for arrival at that strange time of night with Lan To Yee was put, each PW refuted it and disagreed. Whilst, of course, there is absolutely no onus of proof on defence and I note that, the time being in the early hours of the morning, coupled with the denial of both prosecution witnesses, is enough for me to conclude that that was untrue. 147.You were there for the sole purpose of viewing and distributing the spoils of the burglary, which you were responsible for involving both PW4 and PW5 by directing and initiating both and transporting PW5 to the scene. 148.Therefore, my conclusion is that after careful thought and scrutiny of the testimonies of both PW4 and PW5, I am satisfied of their truthfulness beyond all reasonable doubt; added to that is the support of the CCTV footage. 149.Therefore, Defendant, you are convicted.
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