HKSAR v. Yeung Chi Chiu, Nicky
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DCCC 218/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 218 OF 2013 ----------------------
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--------------------- Reasons for Verdict --------------------- 1.Defendant, you pleaded not guilty to one offence of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap. 210, and section 159G of the Crimes Ordinance, Cap. 200. 2.The prosecution case was as follows:- Yip Tin-chi, PW1, a telephone promoter, was on duty at Kingswood Richly Plaza, Tin Shui Wai, on 24 December last. At around 8.55 pm, he carried 10 mobile phones valued at about $40,000 in a bag. He was walking along Tin Yiu Road and was outside Shop G1 to G2 of the plaza. You suddenly approached him from the left and threw some powder in his face. You told him not to struggle and you grabbed the bag from PW1’s left hand. He turned to see you holding a bottle of baby powder in your left hand and a white towel in your right. He pushed you to the ground. You fled, leaving the bottle of baby powder at the scene. A face mask was also found in the vicinity. PW1 was uninjured and called the police. PC10111, PW3, saw from CCTV footage: 1) You wandering around the plaza from 6.09 pm on 24 December wearing a face mask. At 8.51 pm, you followed PW1 outside the plaza. 2) At 8.57 pm, you were walking at the ground floor without a face mask. 3.On 4 January of this year at about 9.50 am, PW3 saw you on a light rail transit train. He followed you to Yuen Long calling for backup. At 10.24 am, he intercepted you at the platform of Tin Shui Wai MTR. Under caution, you admitted spotting PW1 walking with his mobile phone, you followed him and threw baby powder in his face. After failing to steal his phone, you threw away your mask and fled. 4.You committed the offence as you had paid compensation for a traffic accident at work and had no money to celebrate Christmas with your children. You said you had bought the baby powder for your daughter a few days before. In a video-recorded interview under caution, you repeated the confession except to claim buying the powder a few hours before. At an ID parade on 5 February of this year, PW1 positively identified you. 5.The prosecution case comprised eight live prosecution witnesses and one set of admitted facts which was P12. Those admitted facts were very limited in scope. The following was admitted in accordance with section 65C of the Criminal Procedure Ordinance, Cap. 221:-
6.Mr Siu Ching-ming, Senior Property Management Assistant in Jones Lang LaSalle burnt two disks of CCTV footage. Thereafter, Yip Tin‑chi gave evidence as PW1. He said that on 24 December of last year he was working as a salesman for a phone company at Kingswood Richly Plaza, Tin Shui Wai. He had 10 new mobile phones with him to promote. He finished work between 8.45 pm and 8.55 pm that day and then intended to return to his company with the phones. He intended to take a taxi. He walked through the plaza pausing to buy noodles which he ate as he walked. He wandered out of the plaza and something happened when he reached the bus stop. 7.From the left, he was splashed with some white powder. The lighting was relatively dim, yellow from the nearby lamp lights. The white powder landed on the left of his face then someone from behind snatched the bag of phones and said “Need money urgently, don’t put up a struggle”. This was a male. He described him as middle-aged, a little fat, long hair wearing jeans, black windbreaker and white sport shoes. He said he got a look at his face for about 6 seconds. He described his height as similar to his, about 1.77 metres. When the man snatched the bag of phones, he did not let go but pushed him away. He fell down then ran off in the direction of the bus stop. PW1 said if he saw him again he would recognise him. Then in the absence of objection from defence he identified you. He said he chased you for about 10 seconds but then stopped and called the police. 8.He said the phones were worth approximately $40,000 to $50,000. He then described the identification parade. He said he took 1 to 1½ minutes to identify you. He said that was the first time after the incident that he had seen you. On your behalf, Mr Kwan then cross-examined. 9.He agreed the incident took only a short time and he only saw the male when he turned. He agreed that in his witness statement he had said he saw him for 3 to 4 seconds, not 6 seconds. He said the lighting was dim compared to the court, however, he insisted he could see your face even in those lighting conditions. He agreed that in a witness statement given shortly after the incident, he described his attacker as about 30, black windbreaker, blue jeans and white shoes. He accepted that because his own face was covered in white powder, he could not see the face clearly. Now he said he was pretty sure he had seen the face. He said he had a rough picture. When it was put to him he could not recognise the face and appearance, he said he was not sure. He said he was not sure how long it took him to pick you out at the identification parade of 5 February of this year but as far as he remembered, no police officer passed information to him about the case, he believed not. He agreed he did not remember. In re-examination, he said he was 70 per cent sure of the identification. 10.PC10111 then gave evidence as PW3. I should make it clear that I am following the witness list that was provided by the prosecution and though this man was the second live witness, I am treating as PW3 for information. He gave evidence that on 3 January 2013 he went to the security room at Kingswood Richly Plaza, Tin Shui Wai at about 1050 hours and viewed CCTV footage at various times and various cameras. He spoke of seeing the wanted person at various positions. 11.On 4 January of this year at 0950 hours, he left home for Chung Fu MTR station, Tin Shui Wai, he was going to work. He boarded the LRT in plainclothes, he saw a male sitting about 2 metres away whose appearance, features and clothing tallied with that of the wanted person in this case. He reported in and followed the man. At about 10.03 hours he alighted at Tai Tong, Yuen Long, so he closely followed the man. He went to Fau Cheng Square. At about 1012 hours, he went to Tai Chung Road Station and alighted at 1014 at the West Rail Station Yuen Long. At 1019 hours, he had boarded the West Rail train heading for Tuen Mun. It arrived at Tin Shui Wai station where PW3 showed the man his warrant card, stopped him and asked him to alight. 12.At the platform at 1020 hours, he cautioned and questioned him. He said he told the man he suspected him of being involved in the robbery which took place at 2055 hours on 24 December of 2012 at Richly Plaza Ground Floor outside the congee restaurant. He had cautioned him in the presence of PC12122. He asked him eight questions and received eight answers which are recorded in his notebook: 1) “Where were you at 0855 hours on 24 December last?” You were replied you were off-duty that day and went to Richly Plaza to shop at about 5 to 6 pm. 2) “Then?” You replied you walked around until about 8.45 pm when you were in a 7-Eleven you saw a man playing with his mobile phone, out of greed you intended to snatch it. 3) “Then?” Then you followed him to the road and poured talcum powder at his face and tried to snatch the phone. Unexpectedly you failed to do so and walked back home. You took off your jacket and mask before going back into the plaza. You then left via the main door and took the LRT home. Also you said you acted alone in the crime. You said you were wearing what you wore at the same time except for the jacket which was at home and a mask which you had discarded. You said you bought the mask for $2 from a pharmacy before entering Kingswood Richly Plaza and the talcum powder several days before for your daughter. PW3 then said he arrested you for attempted robbery and cautioned you and you replied, “Ah sir, I had a crash when I went to work and needed to pay compensation leaving me no money to celebrate Christmas with my kids”. At 1040 hours, he arrested you and took you to a police vehicle to go to Tin Shui Wai police station arriving there at 1104 hours. 13.At this point, Mr Kwan read into the court record and submitted written objections to various parts of the evidence. The main challenges lay to the alleged admission on arrest, the post-recorded statement, the video-recorded interview and the police notebook and post-recorded interview PP2, PP2A, PP4, PP4A and PP4B and also it later emerged PP5, also the various translations. He also objected to the conduct of the police identification parade. Whilst lengthy and far-reaching, the objections speak for themselves and I do not see the need to repeat them. 14.I ordered that we proceed by way of the alternative procedure. Evidence-in-chief then continued. After returning to the police station, PW3 then compiled the post-recorded statement in his notebook, that being PP2 and PP2A, the post‑record being made between 1145 hours and 1300 hours 4 January last. At 1310 hours, the post-recorded statement was read over to you. You were then given it to read yourself and told you could make any corrections, additions, alterations. At 1325 hours, you said you had read it and did not need to make any alterations. You then wrote down the closing declaration. You then signed it at various places. At 1330 hours, a copy was given to you and you signed a receipt for that copy. At 1341 hours, you returned to the duty officer. 15.PW3 was then cross-examined at length by Mr Kwan but remained unshaken. There was some discussion of PW3’s viewing of the CCTV but I do not see the need to deal with that at this stage. 16.DPC46178 then gave evidence as PW4 on the list. His evidence related to the taking of the video-recorded interview on 5 January of this year. He said he had gone to the report room of Tin Shui Wai police station and signed you out. He claimed to have considerable experience of taking video-recorded interviews. He referred to providing you with a POL.153 and the subsequent request for a lawyer. PW4 then took you to the duty officer for this purpose. You were there allowed to call a lawyer. You said to the officer that the lawyer would reply to you later. You clarified that this meant the lawyer would come later. 17.You were then taken to Yuen Long Police Station to make the video-recorded interview. On arrival there you again requested to call the lawyer. This was arranged and you said that you would get a reply in 15 minutes, therefore the police waited. After 15 minutes, PW4 said that a colleague from the report room told him the firm had arranged for someone to come before 11 am. As this was shortly after 10.30 am, they waited again. 18.At about 11 am, a member of staff of the solicitor’s firm arrived. She said to PW4 that the firm would not send a lawyer to represent the defendant and PW4 told you this and you replied “Okay”. They then went to start the video-recorded interview. PW4 maintained that everything was done properly and you consented to the video-recorded interview. No promises were ever made to you and you were not coached. The disk, PP4, transcript PP4 and translation, PP4B, were then produced. You and the officers returned to Tin Shui Wai Police Station where at about 12.30 pm you were formally charged. 19.Again, the officer was subjected to lengthy cross‑examination by Mr Kwan and he denied all improprieties and gave explanations for what had taken place. He effectively denied speaking with your elder sister claiming only to have spoken with the representative Paul Tse & Company, a solicitors firm. He was taken to some of the questions and answers given by you in the video-recorded interview and of course he could not say why you made the replies that you did. He denied that you had ever been coached or induced. 20.DPC150, PW8 on the list, was then called. He gave evidence of the search of your residence on 4 January of this year when the police party of you, himself, PS19202 and PC8716 arrived at 6 pm. A brown jacket which you pointed out as being worn at the time of the robbery was seized. This, I believe, is P6. PW8 then said he cautioned you and made notes in his notebook. The notebook which was signed by you was produced as PP5 and PP5A, the translation. Your other clothes were seized, the grey top as P7, grey/blue shoes, P8 and grey trousers, P9. PW8 was then cross-examined by Mr Kwan. He agreed that P6 was brown knitwear with a black stripe and black colour. He denied saying that he had said to you that you had to do a house search and that you would be given bail afterwards. He also denied it was him that instructed you to pick up the jumper. He did say that you said you had committed robbery. He did agree he did not think to let you write down your own answers nor a declaration that you understood, nor did he record that he had allowed you to read it over. He denied that he himself had composed it at the police station. 21.PC423 who appeared on list as PW9 was tendered. He denied having any conversation with you even though he had assisted PC10111 at the scene of arrest. He was there at the platform, travelled in the police vehicle and then guarded the room where you were held. He did say at the platform he identified himself to you and handcuffed you. He disagreed that he persuaded you to admit theft, he disagreed that he threatened and induced you or that he made threats to charge you with possession of dangerous drugs. 22.The next witness was Chief Inspector Chan who was PW7. He conducted the ID parade on 5 February of this year at around 11.30 am. He said there was a suspect and eight actors. The actors wore similar clothing and were of a similar age with no great height or weight differences though some were taller and some were shorter. He said the group were roughly the same. The victim took about 3 minutes to pick someone out which he felt was the normal time. The witness had said loudly “Number six”. He then told you that you had been identified and you said you would complain to CAPO. PW7 was then cross-examined. He denied any irregularities. 23.DPC51327 then gave evidence as PW10. He gave evidence of seizing the small bottle of baby powder, P10, from outside the congee restaurant. Also he took photos at the scene and images from the CCTV footage. In cross-examination he said he had accompanied you to Sheung Sha Wan Police Station from Lai Chi Kok for an ID parade on 5 February 2013. He denied that he had phoned officers to alert them to come out and note what you were wearing in order to pass the information to the victim. 24.The court then viewed CCTV footage of a person walking round the plaza. PC8028 then gave evidence as PW8. His role was to view the footage of the incident outside the Kwan Kee noodle restaurant. This took place at approximately 2055 hours on 24 December of last year. He viewed this CCTV footage at about 1 am on 25 December last year. He saw the victim appear walking from the direction of the management office and then the wanted person. The wanted person came from the same direction. He followed the victim getting closer and closer. They then disappeared until 2056 hours. He then saw the victim push the wanted person down. The wanted person lost his balance, he then saw him insert something into a drain cover. The wanted person left in the direction of the main entrance of the plaza. He then went to the scene and seized a blue facemask. This was produced to court as P14. He said the victim had not chased the wanted person or at least he had not seen him do so. He said he was limited in what he saw. The wanted person wore a dark jacket, blue jeans and dark shoes. He informed the officer in charge of the case whose decision it was as to if the tape should be seized. He was then cross-examined. He described the wanted person as 1.7 metres, medium build with a grey jacket and dark shoes. 25.It was at this point the admitted facts were actually read into the record which I have already referred to. They confirmed the various seizures and that was the end of the evidence that the prosecution called. 26.Mr Kwan then indicated he made no submission of no case to answer in respect of the special issue and I was satisfied the prosecution had established a prima facie case of voluntariness and lack of oppression on a prima facie basis. Mr Kwan then indicated that you had been fully advised of your rights and you elected to give evidence and call one defence witness on the special issue. Accordingly, you gave evidence on the special issue. That evidence was very much supportive of the objections raised by Mr Kwan. You were then cross-examined and the prosecution case fully put to you. 27.You said it begun on the day of arrest with the purchase of some painkillers and sleeping pills from a pharmacy. You said you thought you were stopped and arrested for possession of dangerous drugs initially. You maintained your position of the objections to the various documents I have referred to and in fairness were unshaken on that point. 28.Your elder sister, Yeung Bik-yee, was then called to give evidence. She said on the morning of 5 January 2013 she received a call from Paul Tse & Company solicitors to say you were suspected of a crime and wanted a lawyer. That person said that you had phoned, he said $8,000 was needed to get a lawyer to accompany you in the making of your cautioned statement at Yuen Long Police Station. Your sister said she then got the money and went to the police station and she waited there for the lawyer. She said a plainclothes officer came out and told her the gist of the case. He said you were suspected of having intent to steal someone’s mobile phone at Tin Shui Wai. He said it was a trivial matter and there was no need to waste money engaging a lawyer. However, he did say he did not know at that time if bail was to be granted. She recognised the officer and identified him on the first day. She said she had spoken with him for a couple of minutes at the police station and it was DPC46178. She then had a discussion with her younger brother and they decided not to hire a lawyer. She phoned Paul Tse & Company and cancelled them. They had said someone was on the way to the police station and so would incur travelling expenses of $500. She produced a receipt which is D1. 29.She was then cross-examined by Mr McGuinniety. The tenor of this cross-examination was that the identification was less than spontaneous. Also, even if it was the officer, no suggestion was made by him to her. She of course denied this. 30.Defence then closed their case on the special issue. Mr McGuinniety for the prosecution and Mr Kwan for defence made final submissions in respect of the special issue. It is fair to say that Mr McGuinniety’s were brief and to the point. I intend no criticism by saying that. 31.The matters covered in respect of the special issue comprised the admission on arrest, the post‑recorded interview by PW3, this was in his notebook, PP2; the video-recorded record of interview conducted mainly by PW4, PP4, and the notebook entry of DPC 150 which you had signed, PP5. Also, the conductor of the identification parade of 5 February 2013 which was supervised by PW7. The objections were far-ranging encompassing such matters as failure to caution on arrest, failure to allow you to write down your own answers in post-records, failure to allow you read over the post-records, failure to allow you to correct it or alter it, delete parts or make additions; that at the police station you were misled to believe the offence was one of attempted theft and that you were caught on CCTV, also there were claims of threats and inducements in that PW3 threatened you that you would be charged in addition with possession of dangerous drugs if you did not admit attempted theft. If you were prepared to admit attempted theft then there would be no charge of possession of dangerous drugs and the drugs would be disposed of quietly. There was an active inducement that if you admitted attempted theft you would only get a community service order or a suspended sentence but if you were convicted of possession of dangerous drugs you would go to DATC for possession. 32.It was also alleged that you were coached what to say in the interview, that the post-record was signed at one go without you being able to read it first, that the post-record was fabricated by PW3 and no caution given; in respect of the home search, that you were induced to comply by PW8 who said that you would get bail, that it was indeed PW8 who instructed you to pick up P6, that PP5 was fabricated and you were not allowed to write your own answers on the corrections before signing. You were told you would not get bail if you did not sign PP5. Further, that prior to the video-recorded interview of 5 January 2013, your older sister was induced by DSP46178 to dispense with any lawyer, you having requested and contacted one, and that same officer coached you what to say. Also, he offered inducements by saying that you would get bail afterwards. That in respect of the ID parade, that information was passed to PW1 about your attire prior to the parade. Also at the parade itself that you were dressed differently from the others, therefore it was not fairly conducted. 33.I have already given my ruling in the record but having heard all the evidence, I found that any such irregularities that occurred were minor and that PP2, PP4 and PP5 were voluntary, being fairly taken and freely given. That there was no inducements, threats or coaching and that the rules and directions for the questioning of suspects was substantially and properly observed. 34.Where your evidence contradicted that of the police officers, I disbelieved it. I found your version to be inherently incredible. The onus of course is on the prosecution to prove voluntariness beyond all reasonable doubt. I found the officers to be truthful, mutually corroborative and honest. They gave clear and logical explanations of how they conducted the investigation and were prepared to make admissions where they had made minor mistakes. 35.In respect of legal representation, it is clear if the police had intended you to be denied such a representation you would not have been given access to a phone. It is clearly illogical for them to allow you access to a lawyer and to call a lawyer in these circumstances. I did not believe that your sister had been induced, as she claimed. I noted, and it is not denied, that the police were prepared to wait and give you time between meeting with lawyers and waiting for lawyers. I did not believe that DW1 had been persuaded by DSPC46178 to dispense with the services of Paul Tse. The police would not have been so scrupulous in allowing you to make contact had that been the case. 36.In my opinion, I found that she never met the officer alleged and was not so induced, that for reasons which she chose not to share with the court, it was she decided for her own reasons not to pay for the lawyer. Your own approach to this is shown in PP4 where it was clear at question 9 and answer 10 that you did not want a lawyer. Had you done so, you would not have answered in this way. 37.As to the identification parade, your claims of impropriety were in my finding fanciful and simply untrue. The claimed passing of information by a police officer to PW1 never took place and within reasonable and acceptable bounds, you and the other actors were similar in appearance and attire. I do accept the honest admission of the Chief Inspector that you did appear somewhat dishevelled. This was a result of you being held in custody and I will return to that again in my verdict. 38.Therefore, having considered the special issue, I admitted the post-recorded statement, the verbal admission, the video‑recorded interview and the notebook entry referring to the search. I found that the ID parade had been conducted fairly and properly. I ruled accordingly and all provisional exhibits became full exhibits within the case. Mr McGuinniety then closed the case on behalf of the prosecution and in the absence of any contrary submission I did find you had a case to answer. 39.Mr Kwan then informed me that you had been advised of your rights fully and elected neither to give evidence nor to call any evidence on the general issue. The case was adjourned for final written submissions. As the provisional exhibits had all become full exhibits within the case, I revoked your bail, the position having changed considerably. As you had not given evidence in the general issue, in accordance with accepted convention, Mr McGuinniety made no final submissions. However, on your behalf Mr Kwan did so. I can assure you I have taken those fully into consideration when reaching my verdict. I turn now to the verdict. 40.I begin now by stating the obvious, the case is now closed, defence do not challenge that the offence of attempted robbery took place so the only question for the court to answer is whether the evidence proves beyond all reasonable doubt that you were in fact the perpetrator of that offence. I look again at this stage at the various pieces of evidence challenged by defence in the special issue and having believed the prosecution witnesses jointly and severally on the points at issue, I conclude that those pieces of evidence should be treated as admissible and considered. I can find no logical reason to exclude that large body of evidence. 41.I shall deal first of all with the CCTV footage. What is remarkable and I must say inexplicable is as to why the footage which showed the actual incident outside the congee restaurant was not retrieved and preserved. We will never know how useful it may have been but for sure it ought to have been available for viewing but why PC8028 did not have the common sense to seize it is a complete nonsense. Also one wonders why the officer in charge of the case failed to rectify this matter. That is as far as I can comment on that point but perhaps the police have lessons to learn from that. 42.Be that as it may, the court was shown other CCTV footage from inside the plaza. I mean no disrespect or criticism by saying this was of little of no assistance and merely showed a male who bore some passing resemblance to the description of the wanted person by PW1 and PW6. Certainly I am not able nor prepared to speculate that it was you. It took us nowhere. If we had had the other CCTV footage that was not retrieved it may have had some relevance, especially if the court had been able to relate the wanted person throughout. Therefore the CCTV footage presented was of little or no value. 43.I turn now to the identification evidence and the picking out of you at the identification parade on 5 February of this year. From PW1’s testimony, it became clear very quickly that there were problems with the identification. PW1 admitted the light to be poor at the scene, the view of the assailant was of short duration and in a stressful situation when he had powder thrown in his face. The tenor of what he said was more to the effect that he was more interested in holding on to his phones than he was in identifying the assailant. It is clear that any view that he had of the face was of short duration and in poor light. 44.Applying the principles of the case of Turnbull it was simply not good enough. That he picked you out from the line-up is accepted but the basis is suspect to the extent it could have been accidental and fortuitous. It would seem that your appearance may have been familiar and you were somewhat shabby and dishevelled after being held in custody. The final matter was PW1’s admission in re-examination that he was only 70 per cent sure that it was you. This is in my opinion simply not good enough. I cannot rely on PW1’s identification of you in court nor on the day of the parade to the requisite standard of proof beyond all reasonable doubt. All I can find is that your appearance and build strongly resembled the wanted person. 45.You were arrested by PW3 who saw you travelling by light rail transit train on 4 January of this year. He said he recognised you from his viewing of the CCTV footage of the man progressing suspiciously round the plaza. He said it was your appearance, features and clothing that made him suspect you of being the man he had watched. Clearly what PW3 was saying is that he had formed suspicions and maybe he was following his instincts and he wanted to follow you and investigate you. This he did. He followed you when you alighted and you rejoined the train finally stopping you at the platform of Tin Shui Wai MTR Station. From this flowed the various investigations and admissions I have ruled admissible. The question is then whether I can say they are true and reliable to the extent that the prosecution case is proved beyond all reasonable doubt. 46.In the presence of other officers, PW3 began to question you. First, he told you that you were suspected of involvement in a case of attempted robbery and after the initial caution. PW3 told you the time, date and place of the incident. He then proceeded to ask you eight questions to which you gave eight answers which are recorded in the police notebook which are exhibits P2 and P2A. Later, these questions and answers were converted into a post-recorded statement with you signing to confirm them and indicating having been told and allowed your rights referred to in that declaration. That declaration was written down by you voluntarily and without demur. 47.The next step was the video-recorded interview under caution, P4, P4A and P4B. This was, in my opinion, shown by the prosecution to be entirely voluntary, freely given and fairly taken without oppression of any kind. 48.Mr Kwan on your behalf understandably and properly prays in aid to attack those confessions the minor discrepancies between what you admit to and the actual prosecution evidence, especially that of PW1 and PW6. Also that in P4 some of your answers appear unclear, uncertain or hesitant. He suggests that the likely indication I should draw from such is an inference of possible and indeed probable pressure on you of coaching to answer as the police wanted. He specifically drew to my attention answers 125 and 230. 49.However, after careful thought and perusal of those questions and answers relevant to that part of the video‑recorded interview, I do not accept the proposition that they indicate or support misconduct by the officers. In my opinion, they show no more than the answers freely given by you and any oddness in their terminology is simply how you chose to reply. I do not accept logically or sensibly that any inference of having been coached can be drawn from such answers. I have done and still do reject such a submission. 50.The stance taken by defence is, as I have previously stated, is not that the offence did not take place but that it was not you who was implicated. Therefore the admissions that you made which I have brought into evidence should not and cannot for reasons set out by Mr Kwan, so admirably in his final submission, be relied upon to establish your guilt to the requisite standard of proof. 51.By way of comment, I would say that the incident of the alleged robbery to an extent was rather farcical, lasted but a few seconds, as the evidence of PW1 and PW6 establish, and both parties, that is the victim and the wanted person, would without doubt find the situation rather stressful and confusing. It was a stressful situation to all parties so that if all versions tallied perfectly then I would have been surprised. I say this in the context of you having made admissions of your involvement on three or four separate occasions, at the scene of arrest, later confirmed in P2, further confirmation in P4 and a partial admission in P5. 52.Within the parameters of human error and memory, there are what I regard as minor discrepancies. Specifically there is some uncertainty and disagreement about the wearing of the mask which is P14, as to whether the snatching related to a handheld phone or a bag of phones and as to whether you were pushed to the ground or hit twice on the back before falling over. These are, in my opinion, cosmetic details which are neither here nor there given the speed and circumstances of the attempted robbery. 53.Similarly, as to when the talcum powder was purchased. I have to say that there is an element of clutching at straws in these submissions, proper though they are. Also, your own selection of P6’s outer garment can be no more than you mistakenly picking up the wrong garment, if indeed it was a mistake. 54.The important elements are that your admissions clearly place you at the scene, despite contrary submissions, regarding exact location at the right time and performing the acts of attempting to rob PW1 of a phone or phones. I am satisfied it was phones. 55.I note also that at the scene of arrest that you made some spontaneous and clear admissions and you confirmed those later in P2. P4 goes on to confirm and give further detail of what you did and P5, whilst in form and content is much weaker, it does support the previous admissions and provides what I regard as persuasive confirmation of the facts. 56.Therefore, in conclusion, when one puts together the admissions at the scene of arrest, the later confirmation in P2, the further and repeated confirmation in detail of P4 and acknowledgement in P5, the prosecution case is to my mind simply overwhelming. I ask who is in a better position, apart from the victim, to say what occurred than the perpetrator himself and that is you? Some minor detail may not tally but the main events and admissions do. In my finding, your admissions are honest, reliable and correct making full allowance for any lapse in memory and the speed and stress of the occasion. 57.On that basis, therefore, I am satisfied to the requisite level, that is beyond all reasonable doubt, that you are guilty as charged and that all elements of the charge have been proved. You are therefore convicted.
Please refer to CACC268/2013 for the relevant appeal(s) to the Court of Appeal. |
Further hearings and rulings under DCCC 218/2013