HKSAR v. Cheung Tsang and Another

DCCC295/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 295 OF 2012

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Reasons for Verdict

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1.In this case the two defendants have been jointly charged with a Chiu Chiu who is now deceased of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210, and section 159G of the Crimes Ordinance, Cap. 200.

2.The particulars being that they on 11 January of this year attempted to enter as a trespasser part of a building known as the Kwong Tai Medicine Company at Ground Floor, No.2B Ma Tau Wai Road, To Kwa Wan, Kowloon, with intent to steal therein.

3.The prosecution alleged that the two defendants together with Chiu Chiu entered into a joint enterprise to commit this burglary, Chiu Chiu being the one to break into the premises, D1 being the driver of the getaway vehicle and D2 being the lookout.  The actual burglary itself being frustrated by police who had laid ambush in the vicinity. 

4.Both defendants, as is their right, elected not to give evidence, nor to call any evidence, effectively putting the prosecution to strict proof.  The only issue arising being one of identification.  At the outset of this ruling, I make it clear that despite the defendants having been jointly charged with this offence, in coming to my conclusions, I have assessed the evidence against each defendant quite separately.

5.Prior to the calling of any oral testimony, a set of agreed facts, Exhibit P43, was produced dealing with formal matters not in dispute.  These were produced pursuant to section 65C of the Criminal Procedure Ordinance, Cap.221, Laws of Hong Kong.  These facts dealt, inter alia, with the arrest of both defendants as well as the arrest of Chiu Chiu, agreed photographs, Exhibits P40 and P41, the fact that D1 was the registered owner of vehicle registration No. PZ 6792 and the travel records of Chiu, D1 and D2 indicating that each of them travelled to the mainland passing through Lok Ma Chau Control Point at 9.55 pm on 10 January and returning to Hong Kong at 3.27 am on 11 January, only an hour or so before the alleged attempted burglary.

6.All of the prosecution witnesses who testified were police officers principally attached to the intelligence unit of New Territories South.  PW1, DPC46439, was one such officer, and he testified to the fact that he together with other officers received a briefing on the evening of 10 January 2012 at 2300 hours from Acting Chief Inspector Chow Chun-choi.

7.I should say here that it is also an agreed fact that at that briefing the officers who attended had been shown photographs of Chiu Chiu, D1 and D2. 

8.PW1 testified that he was, together with DPC33977 who was PW2, assigned to be an observing officer and they at 1.25 am on 11 January took up their positions at an observation post which was situated at the landing between the fifth and sixth floors of Hung Hom Municipal Services Building.  Both officers testified that at 0419 hours on the 11th, they saw a light coloured Mercedes Benz which they later came to know had a registration number of PZ 6792 stopped and parked in Station Lane not far away from the junction of Ma Tau Wai Road.

9.PW1 was able to describe the three men who alighted from the vehicle and he, as was PW2, able to name them.  Whilst the distance at this point in time between the observation post where both PW1 and PW2 were located and the Mercedes Benz was somewhere in the region of 100 metres and it was clearly dark,   it became obvious to me that the reason both officers were initially, and I emphasize initially, able to name the three men was because they had been shown photographs of them earlier in the evening and were clearly acting on intelligence that not only were these three men going to emerge but that a burglary was going to be committed; this was freely admitted by PW1.

10.In any event PW1’s evidence continued by him testifying that when the three men alighted, Chiu Chiu and D1 walked into a rear lane to the left of Station Lane whilst D2, he said, walked along Station Lane towards Ma Tau Wai Road, coming toward the police observation post.  D2, he said, then walked along Ma Tau Wai Road toward Wuhu Street, whilst walking, he said, D2 kept looking around.  Upon reaching the location of the medicine shop at No.2B Ma Tau Wai Road, he said D2 who he noticed wore gloves, bent down and touched one of the padlocks to the iron grille of the medicine shop for a very brief moment.  At that time he said he was some 60 to 70 metres away.  He said D2 then stood up and walked to the junction of Ma Tau Wai Road and Wuhu Street where he said he met D1 with whom he said he had a conversation.

11.At the same time PW1 said that he saw Chiu Chiu emerge from the rear lane of Ma Tau Wai Road.  He said he was pushing a trolley loaded with garbage.  He said Chiu Chiu squatted outside the medicine shop and moved towards the padlock of the iron grille.  He said he saw him tamper with the padlock for some 4 to 5 minutes.  During this period of time, PW1 testified that he saw D1 and D2 cross the road to Wuhu Street and he eventually lost sight of them.

12.After tampering with the lock, PW1 said that he saw Chiu Chiu push the trolley back into the rear lane of Ma Tau Wai Road and a minute later he said he saw D1 walking down Station Lane toward the Mercedes Benz and he said he saw him get in. Chiu Chiu emerged from the rear lane, he put a bag into the boot of the car, got into the front passenger seat of the car and the car drove off.

13.It was this officer’s evidence that at around 4.53 am, he saw D2 emerge at the junction of Ma Tau Wai Road and Wuhu Street.  He said he could clearly see his face.  He stood there, he said, for about 10 minutes looking around and walking here and there.  At 5.03, he said he saw the Benz emerge again at Station Lane stopping at its original position.  D1, he said, got out from the driver side and Chiu Chiu alighted from the front passenger seat.  D1 walked up Station Lane, he said, toward Ma Tau Wai Road and incidentally the observation post where PW1 and PW2 were whilst Chiu Chiu went into the rear lane.  He emerged, he said, from the rear lane, turned right into Ma Tau Wai Road, pushing a trolley and stopped outside the medicine shop.  He said he squatted down, he put one of his hands into a garbage bag on the trolley and took out a bolt cutter and cut padlocks on the shutter. 

14.From the communications device that the officers held, he said he heard the officer-in-charge shout, “Action.”  He and his colleague were then, he said, told to leave the observation post and go down to the scene which the officer said they did. 

15.This witness identified the bolt cutter which he said was used by Chiu Chiu and this was Exhibit P1. 

16.On 15 March 2012, PW1 said that he attended two identification parades and was able to identify D1 and D2 as being the two people that he had seen on the early morning of 11 January.  He said that he was able to identify these men not merely because he had been shown their photographs earlier on, but he also said that he was certain these were the same two men that he had seen that early morning. 

17.In cross-examination of this witness, it was consistently suggested to him and he consistently denied that due to the minor discrepancies in his witness statement and his testimony, that he had lied. PW1 conceded in cross-examination that when he first saw D2 get out of the Benz on Station Lane that he could not see his face clearly, but he said that as he walked along Station Lane towards Ma Tau Wai Road and PW1’s observation post, he said he could see his face clearly.  The closest distance he was from him, he said, being about 25 metres.  He said he definitely did not identify the wrong person.  

18.As I have said, PW2 was PC33977, the other observation officer, and he confirmed the evidence of PW1.  He too testified that on 15 March 2012 he attended an identification parade and was able to identify both D1 and D2 as being the two men he had observed that early morning, D1 being the driver of the vehicle and D2 patrolling the vicinity, looking around and, as PW1 had said, on one occasion bending down and touching the locks briefly on the main iron grille of the medicine shop on Ma Tau Wai Road.

19.PW3 was PC2062.  He was part of the team that had received a briefing from Acting Chief Inspector Chow on the evening of 10 January 2012 and testified that he proceeded with some of his colleagues at 1 am to Hung Hom and took up his standby position in the vicinity of Wuhu Street and Baker Street.  At 0419 hours he said that he became aware as to the arrival of a light coloured Mercedes Benz which had stopped on Station Lane in the direction of Ma Tau Wai Road and, as a result, he walked to near the Nanyang Commercial Bank on Wuhu Street.

20.He testified that from his position he could see a man some 40 metres away wearing a pair of dark coloured gloves standing outside the medicine shop on Ma Tau Wai Road.  He said he saw him bend down and touch the padlock with his right hand for only about a second.  Then he said the man stood up and walked in the direction of Wuhu Street. 

21.The witness said that from the time that he first observed this man until he lost sight of him, the timeframe was one to two minutes and for that period of time he said that he could clearly see his face.  Significantly, this witness also at 5.45 am went to Hong Ping House at Cheung Hong Estate and laid ambush at the parking space at the front door of Hong Ping House.  His evidence was that at 5.52 am he saw a man from a distance of 15 metres away enter the building and it was the same man whom he had earlier seen touching the lock of the medicine company.  He informed his colleagues and, as a result, he accompanied another team of officers to Room 912, Hong Ping House. 

22.He said Detective Sergeant 11605 knocked on the door and the man whom he had earlier seen opened the door.  That man was arrested and it was the 2nd defendant.  It was suggested to this witness that he had discussed this case with other officers who had given evidence in the case and that they had put their heads together, the witness disagreed with this.  As far as clothing is concerned, PW3 said in cross-examination that at the time of the offence D2 wore Exhibit P29, a dark blue sweater. 

23.PWs 4, 5 and 6 were the officers who arrested Chiu Chiu, D1 and D2 respectively.  Nothing particularly significant turned on their evidence save that with regard to the arrest of D1, he was seen by the arresting officer PC58919 attempting to board a taxi.  The key to the Mercedes Benz which had stopped in Station Lane was found on him and it is an agreed fact that gloves, pliers and adhesive tape were found in the door next to the driver seat and a pair of bolt cutters was found in the boot.

24.With regard to PW6, PC34696, who was the officer who arrested D2, he said that at the time D2 was arrested, he was wearing a dark blue jacket, a dark coloured pair of jeans and black Nike sports shoes. He said he also found from the bunk bed inside the premises a dark blue sweater, Exhibit P29.  The officer testified that he asked the 2nd defendant exactly which upper garment had he worn on 10 January to which he said D2 told him that he wore a sweater. 

25.Pausing here, it is worthy of note that this evidence coincides with the evidence of PW3 regarding the clothing that D1 was wearing at the time of the offence. 

26.Two further officers also were called for the purposes of cross-examination, they were Detective Sergeant 11605 who was PW7 and DSPC23222, PW8.  They did not promote the prosecution case in any way, and subject to the production of two CCTV tapes, Exhibits P44 and P45, depicting the times when the 2nd defendant was seen entering and leaving the building where he lived, that completed the case for the prosecution.

27.I found a case for both defendants to answer on the charge and as is their right, they elected to remain silent, neither did they call any witnesses to testify on their behalf.  Whilst neither defendant elected to call any evidence, counsel for the 2nd defendant did in the course of his cross-examination produce a number of photographs, Exhibits D1, D2 and D3 to D10, depicting the scene, particularly in darkness. In coming to my conclusions in this case, I did of course along with all the other evidence take these into account.

28.Dealing first of all with the credibility of the witnesses, for my part, whilst I was obviously conscious of every prosecution witness being a police officer, I notwithstanding this found each of them to be good witnesses and witnesses upon whom I could rely.

29.As this operation depended very much on the observation of officers for a period of just under an hour, that is from 4.19 am to somewhere in the region of 5.10 am, and it was a fluid situation with officers observing events from a different perspective, there were obviously some minor discrepancies in the details of their evidence.  However I found such discrepancies that did exist to be not material and they did not detract from the general credibility of the officers whose evidence I found I accepted.  Similarly, as has been pointed out by both defence counsel, there were some discrepancies in the evidence of PW1 and PW2 and the witness statements that they had made.  Once again, I found that nothing turned on this.  I also reject entirely the proposition put forward by the defence that the officers had lied in their evidence and colluded with each other. 

30.As I identified at the outset of this ruling, the main issue that arose during the course of this trial was the question of identification, or rather the quality of the identification of the defendants. I considered very carefully the possibility of PW1 and PW2 particularly misidentifying D1 and D2 as to the roles they played that early morning and specifically picking them out at the subsequent identity parade held on 15 March 2012 at Cheung Sha Wan Police Station merely because shortly before the observation at the briefing they had been shown photographs of D1, D2 and Chiu Chiu.  I found, however, that this was not the case and was satisfied that there had been sufficient time lapse between the incident itself and the identity parade, some nine weeks, such that the impact of the photographs being shown to PW1 and PW2 had no bearing on their subsequent identification.

31.Moreover, insofar as D1 is concerned, identification is not the only evidence that implicates him.  The 1st defendant upon his arrest when he was attempting to leave the scene by taxi only some three minutes after the operation turned overt was found in possession of the ignition key to the Mercedes Benz parked in Station Lane which, it is agreed, is registered in his name and inside which were found gloves, pliers, adhesive tape and a pair of bolt cutters. 

32.Regarding the 2nd defendant, apart from the identification of this defendant by both PW1 and PW2, this defendant was also observed by PW3 at the scene bending down and touching the padlock of the iron grille to the medicine shop.  This observation was made by the witness from a distance of some 40 metres where the lighting condition was good, street lights were on and there was illumination at Nanyang Commercial Bank from where the officer made his observation.  He observed the 2nd defendant for one to two minutes during which period of time he could see his face clearly.  This was, I find, far from a fleeting glance. 

33.Moreover, it was this witness, PW3, who later that morning at 5.52 am from a distance of only 15 metres saw the same person that he had earlier seen outside the medicine shop returning home.  He attended the arrest of the 2nd defendant at his home, his evidence being that the man who was arrested was the same person as the man he had earlier seen return home and had also seen outside the medicine shop.  I accept this evidence. 

34.Whilst it appears from the evidence that the 2nd defendant was at that time wearing Exhibit P29, the dark blue sweater, it is right to say that there was some confusion as to precisely what upper garment the 2nd defendant was wearing at that time, whether it be Exhibit P29 or Exhibit P28 which is described as being a blue coat.  However, I have examined both of these exhibits, P28 is not a blue coat at all, it is a dark blue jacket.  Both garment have zips in the middle, and I have little doubt that whatever the 2nd defendant wore that early morning, whether it be Exhibit P28 or P29, between 4 and 5 am on 11 January, they would have looked remarkably similar.

35.In any event, the evidence of PW3, whose evidence I accept, was that it was not only by reason of the clothing that the 2nd defendant wore that he was able to identify him, it was due to him actually seeing his face. 

36.Having assessed the evidence as it pertains to each defendant quite separately, I have no doubt whatsoever that D1 and D2 were indeed engaged in a joint enterprise with Chiu Chiu to burgle these premises. The fact that Chiu Chiu was caught in the act of cutting the padlocks to the iron grille of the medicine shop leads me to the irresistible inference that he was attempting to gain entry to the premises with intent to steal. 

37.From the observation of the police officers, it is clear that the 1st defendant was the driver of the vehicle, the Mercedes Benz, which was to be used to transport the 2nd defendant and Chiu Chiu to the scene where the 2nd defendant was to act as the lookout.

38.I say that having regard to all of the evidence in this case, I am satisfied that the prosecution have proved this charge against both defendants beyond all reasonable doubt and I convict them both accordingly.