HKSAR v. Lee Kwok Lam

DCCC 1340/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1340 OF 2011

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Reasons for Verdict(D1)

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1.There are 4 defendants in this case. This Reasons for Verdict concerns only D1 and the 3 charges that he faces. The other defendants each pleaded guilty to their respective charges on the first day of trial.

2.The charges D1 faces are charge 1, conspiracy to wound with intent to do grievous bodily harm; charge 2, possession of offensive weapons contrary to s.33(1) of the Public Order Ordinance, Cap.245; and charge 3 Dangerous Driving.

Background

3.Police officers hid in ambush at Wa Tai Road on 15^th September 2011 in relation to a case of conspiracy to wound with intent. 2 targeted vehicles showed up. Despite being blocked off by 2 Police vehicles, D1 continued to maneuver the vehicle (a Mazda) that he was driving to escape, colliding with the Police vehicles in the process. Police eventually broke the driver window and pull out the ignition key.

4.Inside the other vehicle knives, gloves and walkie-talkies were found. Also found in the glove compartment of the other vehicle was a piece of paper with 2 colour photos printed on it. The photos show PW1. On the back of that piece of paper was written the name, address and phone number of PW1.

5.PW1 and his family own an ancestral home in a village in Shenzhen, mainland China. Some elders of the village wanted to redevelop the village. PW1 could not agree on the amount of compensation he was to receive with the elders. As a result of the disagreement, the electricity and water supply in the ancestral home had been cut by unknown person. The prosecution’s case is that those who had disputed with PW1 had asked someone to hurt PW1 in Hong Kong, and that D1, together with D2-4 had conspired to wound PW1 with intent to do grievous bodily harm.

Issues

Charge 1: conspiracy to wound with intent

6.Apart from the basic factual findings, the issue is, based on the evidence of the prosecution, whether the court can infer that there was an agreement between D1, D2, D3 and D4 to unlawfully and maliciously wound PW1 with intent to do him grievous bodily harm.

Charge 2: possession of offensive weapon

7.In relation to charge 2, the first issue is whether D1 could be found to be in joint  possession of the 2 knives that are found in the 2^nd vehicle, which is not the vehicle that D1 was driving. If he was in possession of the knives, were the knives offensive weapons per se or were they adapted for such use. If they were offensive weapons, did D1 have lawful authority or reasonable excuse to possess them. It was never argued by Mr. Davies for D1 that he knives were not offensive weapons or that D1 had any lawful authority or reasonable excuse to possess them.

Charge 3: Dangerous Driving

8.The issue is first of all whether the prosecution can prove that D1 did drive the Mazda in the manner as described by the prosecution witnesses. If that is proved, the issue then becomes whether such manner of driving falls far below what would be expected of a competent and careful driver, and whether it would be obvious to a competent and careful driver that to drive like that would be dangerous.

Prosecution Evidence

PW1

9.PW1 is referred to as “X” in charge 1. PW1 was born in mainland China in 1949 and first came to Hong Kong in 1977 as an illegal immigrant. He became a legal citizen later. He is now a permanent resident of Hong Kong with a full Hong Kong identity card.

10.PW1’s family has a four-storey residential ancestral home in a rural area village in Shenzhen. PW1’s wife is the registered owner of the home. PW1’s 2^nd daughter and her husband are living there.

11.After PW1 retired in 2008, he would stay home to look after his granddaughter, go to the market and look after his mother. Prior to his retirement, he did not hear from anyone about his village being developed. He would go back to his village around once a month. He would stay at the ancestral home.

12.Some time in 2010, the idea of re-development of the village was being floated, which would have necessitated the demolition of PW1’s ancestral home. In February 2011, a meeting was held among the villagers to discuss about the re-development. It had always been the position of PW1 that if the compensation was reasonable he would agree to the demolition of his ancestral home for re-development. There were ongoing discussions in April but they tended to be unpleasant.

13.In July 2011, the water and power supply to PW1’s ancestral home was cut and the door was prized open. PW1 believed that those things happened because he continued to disagree with the demolition of his ancestral home. Matters escalated and the village elders demolished the house of PW1’s adjacent fellow villager by force. PW1 then took part in a protest in the village during which he was punched once. The ex-village chief also said to PW1 that if he did not agree to the demolition, he would be at a great disadvantage.

14.When PW1 was shown the A4 paper with 2 photos, which was found from the glove compartment of the other vehicle (Lexus) that was stopped by the Police on the day of arrest of D1, PW1 confirmed that he appeared in both the photos and that they were taken in around March or April 2011 when he was in Shenzhen. PW1 also confirmed that the address, numbers written on the back of that paper was his address, his telephone numbers and the name written there was how people would address him. The photos were not taken by PW1. PW1 knew nothing about what the defendants were up to.

PW2 PC33765

15.Officer Tam is attached to the photographic section of the Forensic Department. He was the chief photographic officer. PW2 was instructed by his senior officer to take photos on 15^th September 2011. He attended the scene at 09:29am. Officer Tam then took the court through each of the photos that he had taken. He took in total 82 photos in relation to the incident.

PW3

16.PW3 was one of the Police officers tasked with observation on the day. He was briefed to make an observation of the Wa Tai Road roundabout, of vehicles involved in the case.

17.PW3 proceeded to the roundabout to observe, arriving at around 7:15am. PW3 was with PC33497 (PW4). They were brought by the Criminal Intelligence Unit vehicle to there. It was an unmarked vehicle. Apart from PW3 and PC33497, there was another colleague responsible for driving. PW3 cannot recall where he sat in the car. They got to the vicinity of the roundabout and PW3 started to work. PW3 got out of the vehicle near the direction of Wa Yiu Road. PW3 cannot recall whether his colleague also got out of the vehicle.

18.At around 7:43am, PC33497 informed PW3 that there was a silver blue Mazda turning into the roundabout and asked him to pay attention. At that time the vehicle was about 30 meters from PW3. The licence plate read PX5009. After PX5009 entered the roundabout, it made a U-turn at the fire station, and then parked outside the fire station. PW3’s view was clear and not blocked at that time. about 1 minute later, PC33497 informed PW3 that another private vehicle, a silver Lexus, was about to turn into the roundabout and PW3 was told to pay attention. PW3 saw the plate of the Lexus read PZ4368. It turned into Wa Tai road and then made a U-turn and stopped behind PX5009. That was around 7:44am.

19.PW3 kept surveillance on the vehicles from a distance of about 70 meters. The lighting condition at that stage was sufficient and he could see the licence plate.

20.At 7:50am, PW3 saw a male alight from the driver seat of PX5009. He was wearing orange top and a pair of black trousers. It is not disputed that this was D1. D1 got out of the car and walked to the rear of the vehicle. Then he walked along the right side of the vehicle from the rear back to the front of the vehicle. At that time he was holding an object that looked like a registration plate in his right hand, approximately 1 foot by 8 inches in size.

21.D1 then squatted in front of PX5009. After a while, from PZ3468’s direction, 2 males walked to the front of PX5009. One of them was in a black top, blue jeans, the other in light green top, blue jeans. They went to the front of PX5009 and the 3 of them had a chat.

22.About 2 minutes later, they returned to their vehicles separately. PW3 then walked in along Wa Yiu Road and saw that the number plate of PX5009 had been changed to LN5963. At that time D1 was in the driver’s seat in front. PW3 walked further into the road and saw that the licence plate of PZ4368 had been changed to HD9233. The male in the black top was in the driver’s seat, while the male in light green top was in the front passenger seat.

23.PW3 continued to walk further into Wa Yiu Road. He reported his observations to the console and continued to monitor the situation from far away, at a distance of around 50 meters. His view was not obstructed during this observation.

24.At 07:58am, PW3’s colleagues made arrests and PW3 left the scene. He did not have further participation of matters at the scene.

25.During cross-examination, PW3 said although he said he saw D1 holding a licence plate like object when he walked to the front of the vehicle and squatted in front of it, he could not be sure if that was in fact what D1 was holding.

PW4 PC33497

26.PW4 was assigned to conduct an observation on that day at the Tai Wo interchange near Lai King, outside Wa Yuen Estate on Castle Peak road. PW4 was to observe if there was any suspected vehicle passing by Castle Peak Road.

27.PW4 arrived at Castle Peak Road at 7:15am to carry out observation. He was alone at that time at his location. It was daytime and there was daylight.

28.At around 7:43am, PW4 saw a silver blue Mazda PX5009 moving along Castle Peak road, turning left eventually into Wa Yiu Road. Later, a silver Lexus PZ4368 also turned into Wa Yiu Road.

29.After they turned into Wa Yiu Road, PW4 stopped his observation. He informed his colleague who was at another location, that these cars had turned into Wa Yiu road and told him to pay attention. PW4 continued to pay attention to vehicles on Castle Peak Road. There was nothing else of significance that occurred in relation to him that morning. He did not take part in anything further that morning.

PW5 PC58138

30.PW5 was the officer who was driving the white lorry in photo 2 of P-3. He drove the vehicle alone that day to the vicinity of Wa King Hill Road in Kwai Chung just before 7am and awaited instructions. 

31.At 7:55am, PW5 saw 2 private cars stopped outside the fire station on Wa Tai Road.

32.The car in front was a light blue Mazda 626, with licence plate showing LN5963. About half a vehicle’s space behind it was a silver Lexus, with licence plate showing HD9233. At that time, PW5’s vehicle was approximately 50 meters from the roundabout. PW5 continued to drive at around 25 km/h. When he was about 20 meters away from the Mazda, he turned into the same lane to intercept it. PW5 stopped his lorry about half a foot away from the Mazda. Other team vehicles arrived at the same time.

33.PW5 saw that the driver of the Mazda was in an orange coloured top. PW5 then saw the Mazda being driven forward towards his lorry, stopped, then it reversed and hit one of their team vehicles. The Mazda was then driven forward again and this time collided with the front of PW5’s lorry. The Mazda then stopped and PW5 got out of his lorry. This maneuvering of the Mazda took place within just a few seconds.

34.PW5 saw his team members had subdued the driver of the Mazda. At that point, PW5 saw no one else inside the Mazda.  PW5 went to the car behind the Mazda and saw that his partner PC33355 had controlled one of persons, later known as D4.

PW6

35.PW6 took part in the same operation. He was taken to the scene in an unmarked Police vehicle, arriving at 6 something in the morning to await instructions. He was later instructed to arrest a male in the blue Mazda LN 5963, the vehicle parked in front of the fire station.

36.PW6’s vehicle drove up to the right hand side of the Mazda from the opposite direction and stopped alongside it. PW6, who was sitting in the left rear passenger seat of the Police vehicle got out of the vehicle while holding a emergency glass breaking hammer (those used in buses) and went around to the driver side of the Mazda. PW6 then shouted to the driver of the Mazda, “Police, get off”. The driver of the Mazda looked at PW6 briefly. Then the Mazda moved forward for about 1 meter, stopped when it hit the white lorry in front of it, reversed and hit another of their team vehicle, being the 3^rd car from the car closest to the camera in photo 35.  This Hyundai brand Police vehicle arrived at more or less the same time as the vehicle that PW6 was in.

37.After the Mazda hit the car behind, it moved forward again and turned right, trying to pull out. In doing so, the Mazda hit the white lorry in front a second time and stopped. At this point, the Mazda was effectively trapped there between 3 Police vehicles.

38.PW6 then went up to the Mazda to try to open the door but it was locked. PW6 used the said hammer to smash the window, reached in and took out the car key from the ignition and threw it on to the floor of the Mazda, as depicted in photo 48. It was suggested in cross-examination that it was impossible to remove the car key when a car is still in gear. It is however PW6’s evidence that he did not pay attention as to whether the Mazda was in gear when he pulled out the car key, nor does he know whether what was suggested by counsel was true or not.

39.PW6 then opened the driver side door of the Mazda from inside and pulled D1 out of the Mazda. The identity of D1 as the driver of the Mazda at that time was not disputed by the defence. PW6 took D1 across the road and handcuffed him and declared arrest on him for using forged instrument, since the licence plate on the Mazda did not match the number on the vehicle registration displayed on the car. D1 remained silent.

PW7

40.PW7 was the officer who was tasked with the arrest and caution of D1. It is his evidence that under caution, D1 said to him, “Ah Sir, it was Ah Chung [D2 according to paragraph 8 of the admitted facts] who had asked me to drive the car here, he said that after I had driven the car here, Ah Chung would repay the $5,000 that he owed me.”

D1’s case

41.D1 fully understood his rights and elected not to give evidence nor call any defence witnesses. It was suggested in the cross-examination of prosecution witnesses that it was the white lorry driven by PW5 that moved in and collided with D1’s Mazda and that it would have been impossible for PW6 to pull out the key from the ignition while the car was still in gear. There is however no evidence as to whether the car was in gear or not when PW6 pulled out the key, nor is there evidence from either the prosecution or the defence to support a finding on the possibility of pulling out the key while in gear.

42.The defendant voluntarily disclosed to the court through his counsel that he has one previous conviction for possession of dangerous drugs where D1 was sentenced on his plea of guilty to 6 months’ imprisonment which was suspended. This will have no bearing whatsoever on my verdict of the case.

Findings

43.It is for the prosecution to prove beyond reasonable doubt all the elements of each of the 3 charges against D1. Although D1 elected not to give evidence, there is to be no adverse inference from this exercising of his rights.

44.Having heard the prosecution witnesses in court, I find that they are all honest and reliable witnesses. I find that D1 did on 15^th September drive the Mazda and stopped outside the fire station on Wa Yiu Road. He did get out of the Mazda and walked to the car’s rear and then walked to the front of the Mazda while holding something that resembled a vehicle licence plate. The driver and the front passenger of the Lexus got out of the Lexus and walked up to D1 and the 3 of them then chatted for about 2 minutes. D1 then returned to the Mazda and the 2 males returned to the Lexus.

Irresistible inference of the timing of the changing of the license plate

45.I note that there is no direct evidence from any of the prosecution witnesses that they had seen anyone change the licence plates on either of the vehicles. I find however that based on the evidence, the only inference is that they were changed after the cars had stopped outside the fire station, and that the front plate of the Mazda was changed by D1.

46.The 2 vehicles were observed by Police officers as PX5009 and PZ4368 when they entered the roundabout and then parked in front of the fire station. Between then and the time when PW3 walked up to the cars and noticed that the plates had been changed, only D1 had squatted down in front of the first vehicle. PW3 saw D1 getting a registration plate like object from the rear. Although PW3 could not be sure it was a registration plate, given the fact that only D1 was in the proximity of the front plate, and the fact that the plate had in fact been changed, the only irresistible inference must be that it was D1 who had changed the front plate. It must also be an irresistible inference that the other plates were changed between arriving at the roundabout and stopping outside the fire station, and that they must have been changed by one or more of those who were in the 2 vehicles.

What D1 said under caution

47.I find what D1 said under caution not true. If D1 was merely asked by D2 to drive the car there and then he will be repaid, why did D1 stay at the scene after stopping the car outside the fire station? Why did D1 change the front license plate of the Mazda? Why did D1 need a walkie-talkie to keep in contact with the car that D2 was in? This all go to show that what D1 said under caution was merely an excuse to explain why he was there and not the truth.

The collisions

48.I find that when PW5 drove the white lorry to block off the Mazda, he stopped within about a foot from the Mazda and did not collide with it. I note the slight difference in the description of the distance between the lorry and the Mazda between PW5 and PW6 but I find that this is as a result of the different angle that they were looking. PW5 was in the driver’s seat while PW6 was outside on the road. The important thing is that I find that the lorry did not drive into the Mazda.

49.I find that D1 upon being blocked off by PW5’s white lorry and the 7-seater that went up to the right side of the Mazda did drive the Mazda forward and collided with the front of the white lorry. D1 then reversed and collided with another Police vehicle that was blocking the Mazda. D1 then drove forward again and hit the white lorry again.

50.All this was done after PW6 had shouted to D1 that they were the Police and had told him to get out of the Mazda. Mr. Davies suggested that any reasonable person whose vehicle had been blocked off by 3 unmarked cars would have done the same. I have to disagree. Any competent and careful driver would have kept the vehicle stationary, and then perhaps use their mobile phone to call the Police, if he was in fact scared. I find that it was impossible that D1 did not hear PW6 shouting Police and for him to get out of the car.

Charge 1: conspiracy to wound with intent to do grievous bodily harm

51.To prove this charge, the prosecution has to prove that there was an agreement between D1 and the others that they will intentionally wound PW1.  The only route that the prosecution seeks to prove the agreement is by way of inference from all the circumstantial evidence, since D2, D3 and D4 did not give evidence in D1’s trial and there is no confession from D1.

52.The circumstances the prosecution say would cause the court to draw the inference that there was an agreement to wound are as follows.

53.D1 was the driver of one of the 2 cars found stopped outside the fire station. The 2 cars arrived at that position at around the same time, one after another. They stopped near to each other. A place that was just 1.7km from the place where PW1 resided. It would take just 1 minute 54 seconds driving at an average speed of 70 km/h to get there.

54.D1 was then seen to have gotten out from the Mazda, the car in front and walked towards the back of the car, took something that looked like a license plate and walked to the front of the Mazda. D1 squatted down at the front for a short time and then got back up. Meanwhile, 2 men got out from the car behind the Mazda and walked up to the front of the Mazda where D1 was and the 3 of them chatted. This chatting established a connection between D1 and those in the car parked behind. It is PW5’s evidence that D4 was one of the persons in the car behind. It is however not clear if D4 was one of the 2 who got out from the car behind to chat with D1.

55.At paragraph 5(k) of the admitted facts, it is admitted by the defence and prosecution that the 18 inch beef knives were found underneath D3 and D4’s seat. This would mean that the defence had impliedly admitted that D3 and D4 were in the vehicle behind at the material time.

56.Inside the Mazda were found the following articles: a walkie-talkie, switched on for use, 3 caps, 2 pairs of labour gloves and 7 surgical masks.

57.Inside the Lexus that was seen to have arrived around the same time with the Mazda and which was also stopped outside the fire station at the time were found the following articles: a walkie-talkie, switched on for use, 4 caps, 5 labour gloves, a surgical mask, two 18 inches long beef knives with handles wrapped in white bandages, a coloured printout of 2 photos of PW1 with his nick name, full address and telephone number written on the back.

58.It is admitted facts that the 2 walkie-talkies found in the Mazda and the Lexus were configured in a way which allowed for communication to be made easily between them. This evidence further establishes the connection between D1, who was alone in the Mazda, and those who were in the Lexus.

59.It is admitted facts that both D1’s vehicle and the vehicle behind had fake registration number plates stuck over the original plates.

60.I find that based on the circumstantial evidence recited above, it is an irresistible inference that D1 had conspired with D3, D4 and the other male in the car behind. I find that their agreement must be that they were to wound PW1 with the intention to cause him grievous bodily harm. This finding is based on the presence of the 2 beef knives which were obviously adapted for use to attack and cause serious injury to another person. It is clear that D1 and those in the car behind were communicating through the walkie-talkies. The masks and gloves and caps were to be used in the attack. The handles of the beef knives had been covered with bandages which would ensure that no fingerprints were left behind. The photos of PW1 was for reference so that they would be able to identify PW1 for the attack. The fact that D1 had driven to a place within 2 minutes’ drive from PW1’s residence goes to show their intention to carry out the agreement to wound PW1.

61.I find D1 guilty of Charge 1.

Charge 2: possession of offensive weapon

62.I find first of all that the beef knives are offensive weapons per se. Even if they are not, they are clearly adapted for use for causing injury to the person. Although they are classified as ‘beef knives’, the fact that the handles were wrapped with bandages goes to show that they have been adapted for causing injury without leaving any fingerprints on the handles should the knives be left behind at the scene of an attack.

63.The next question to consider is whether D1, together with D2 to D4 “had with them” the knives.

64.Since the knives were found not in the vehicle driven by D1 but in the vehicle that had stopped behind, the prosecution must prove beyond reasonable doubt that D1 knew that the others had with them the knives.

65.Based on the available circumstantial evidence, I find that D1, together with D3, D4 and one other male had agreed to wound PW1 with the beef knives found in the vehicle behind. I find that because of the close connection between D1 and those in the car behind, as indicated by the walkie-talkies, the fact that they had arrived at the scene one after another, the fact that 2 of the people from the car behind had alighted and walked to D1 to chat with him, the fact that both cars had multiple pairs of gloves, surgical masks and caps which are items capable to be used to conceal one’s face, the fact that both cars had fake licence plates installed, and the fact that PW1’s photos were found in the glove compartment of the car behind, it is an irresistible inference that D1 knew that those in the car behind had with them the 2 beef knives.

66.I find also that D1 knew and intended for those beef knives to be used to cause injury to PW1.

67.I find that there is no lawful authority for D1’s possession of the knives, nor are there any reasonable excuses.

68.I find D1 guilty of charge 2.

Charge 3: Dangerous Driving

69.I find as a fact what happened was that upon being blocked by the unmarked Police vehicles, D1 decided to try to force his way out from the blockage. In order to do so, he drove his car into the white lorry, then reversed into the car behind, and then drove his car forward again into the white lorry. Because of the lack of distance between D1’s Mazda and the white lorry, the damage as shown in the photos may not be as serious as the manner of driving would suggest.

70.I find that the manner of D1’s driving fell far below that of a competent and careful driver and any such driver would consider his driving as dangerous. PW6 was standing right next to the driver side of the Mazda when D1 decided to attempt to drive away. PW5 was still inside the white lorry when the collisions happened. To drive like D1 did was obviously dangerous to PW6 as well as PW5.

71.I therefore find D1 guilty of charge 3.

Please refer to CACC201/2012 for the relevant appeal(s) to the Court of Appeal.