HKSAR v. Junaid Ahmed and Others

CACC 344/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 344 OF 2013

(ON APPEAL FROM DCCC NO. 523 OF 2013)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the Court):

Introduction

1.The five applicants, who were D1 to D5 at trial, were tried in the District Court before Deputy District Judge Longley (“the judge”) on a Charge Sheet which charged all of them with attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 and the 2^nd applicant only with a further charge of possession of a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap 200.  On 16 September 2013 they were all convicted of the offences with which they were charged and on the following day the 1^st applicant was sentenced to 5 years’ imprisonment for the first charge, the 2^nd applicant to 4  ½ years’ imprisonment for the first charge and 6 months’ imprisonment for the second charge with the sentence for the second charge to run concurrently with the sentence for the first charge, and the 3^rd to 5^th applicants were each sentenced to 4 ½ years’ imprisonment for charge one.

2.All five applicants applied for leave to appeal against their convictions of the attempted robbery charge only.

3.At the hearing of the applications we dismissed them and said we would give our reasons for doing so at a later date.  This we now do.

The Trial

4.The prosecution case was quite a straightforward one.  On 15 March 2013 all the applicants, acting together pursuant to a joint enterprise, attempted to rob Mr Fung Shing (“Mr Fung”) outside the G/F of No. 33 Tung On Street, Yau Ma Tei.  Mr Fung lives on the mezzanine floor of 2‑4 Tung On Street, a street that is parallel to Canton Road and which runs in a one-way direction from its intersection with Pitt Street in the south to its intersection with Dundas Street in the north.  However, the exit of Mr Fung’s building is not located on Tung On Street but is in a small alleyway which leads into Tung On Street.

5.Mr Fung ran a scrap metal business in Yuen Long and habitually carried large sums of money in cash with him in order to carry out his business. On the morning in question he was carrying a green bag which contained $541,000 in cash.

6.It was Mr Fung’s normal practice to leave home for work between 7.10 am and 7.30 a.m. each day.  On the morning of 15 March he exited his building at around 7.20 a.m. and walked from the alleyway into Tung On Street.  He was intending to walk to his goods vehicle which was parked on the opposite side of Tung On Street further up the road.

7.The police anticipated the possibility that something might occur in relation to Mr Fung.  They mounted a surveillance operation in the area and established three observation posts.  Furthermore, three police officers were assigned to keep observation at street level.  One acted as a security guard at a building, another as a street cleaner and the third as a cleaning worker in the lobby of a building.  In addition, other groups of officers waited in ambush at various locations.

8.Apart from Mr Fung himself, who only appeared to have a limited appreciation of what was going on, the principal eye witness evidence for the prosecution came from officers positioned at the three observation posts and the two officers posing as a security guard and a street cleaner.  In addition, the prosecution adduced footage from a private CCTV camera situated on a building in Tung On Street.  This footage recorded images of the activities of the applicants at various times and places in Tung On Street and in an alley beside a basketball court on the odd numbered side of Tung On Street on the morning in question.

9.At 6.32 a.m. the applicants were first seen arriving in Tung On Street as a group of seven males.  The only persons not arrested we shall refer to as WP1 and WP2.  The men talked together for about 5 minutes and then the 4^th and 5^th applicants left the group and walked down Tung On Street in the direction of Pitt Street while the 1^st applicant walked in the opposite direction towards Dundas Street.

10.Shortly after this, the 1^st applicant was observed to have re‑joined the 2^nd and 3^rd applicants next to the basketball court.  The men were apparently talking and some were consuming beer.  At around 6.57 a.m. the 4^th and 5^th applicants were seen approaching the group.  The 1^st applicant then walked to Tung On Street with the 4^th applicant, followed a few seconds later by the 5^th applicant.  He was then followed by the 2^nd and 3^rd applicants and WP1 and WP2.

11.After the group reached the pavement of Tung On Street, the 4^th and 5^th applicants were observed to walk down Tung On Street in the direction of Pitt Street whilst the 1^st, 2^nd and 3^rd applicants, together with WP1 and WP2, stood on the pavement outside the basketball court.  The 1^st applicant faced the other members of the group and made a number of gestures with his right hand with a finger pointed upwards and then pointing in different directions.  Thereafter, the 2^nd applicant and WP2 walked along Tung On Street in the direction of Pitt Street and shortly later the 1^st and 3^rd applicants and WP1 did the same.

12.At round 7.01 a.m. the 4^th and 5^th applicants were seen to walk down the middle of Tung On Street in the direction of Pitt Street.  They reached the alleyway alongside Mr Fung’s building at 2-4 Tung On Street, entered it briefly, and then walked on to Pitt Street.

13.At 7.10 a.m. the officer posing as a street cleaner came into Tung On Street.  He saw three South Asian men, the 1^st and 3^rd applicants and WP1, standing in Tung On Street on the even numbered side of the street by the alleyway leading to the entrance of 2‑4 Tung On Street.  He also saw two other South Asian males, the 2^nd applicant and WP2, on the opposite pavement facing 2-4 Tung On Street.  At about the same time, that is 7.10 a.m. the 4^th and 5^th applicants were observed standing at the junction of Tung On Street and Pitt Street and from time to time looking into Tung On Street.  The ambush was now set and the applicants were simply awaiting the arrival of Mr Fung.

14.Approximately 10 minutes later, at around 7.20 a.m., Mr Fung came out his building at 2-4 Tung On Street from along the alleyway and turned right into Tung On Street.  As he did so, he noticed the 1^st and 3^rd applicants and WP1, to his left as he turned into Tung On Street, and two other Asian males, the 2^nd applicant and WP2, on the opposite pavement facing the alley.  He said that he became aware that the three men seemed to be following him and that made him walk a little bit faster.  The movements of Mr Fung, the applicants and WP1 and WP2 were all captured by CCTV camera.  Consequently, it was not seriously disputed the trial that the 1^st applicant, the 3^rd applicant and WP1 followed Mr Fung along the pavement on the even numbered side of Tung On Street while the 2^nd applicant and WP2 walked in parallel on the pavement on the other side of the street.

15.When Mr Fung came to a position opposite to where his goods vehicle was parked, he crossed the road heading towards the driver’s door of his vehicle which was facing north towards Dundas Street.  He opened the door of his vehicle and placed the bag containing the money inside the vehicle. Simultaneously, WP2 came round the front of Mr Fung’s vehicle proceeding towards the driver’s door and appearing to place his hand on the top of the driver’s door, as though he was trying to prevent it from being closed.  At the same time, the 1^st applicant, followed by the 3^rd applicant walked out into the road towards Mr Fung from the even numbered side of the road.  At the same time the 2^nd applicant, following behind WP2, reached the front of the vehicle.

16.It was at this point that the police operation was turned overt and a considerable number of police officers rushed to the scene and arrested the 1^st, 2^nd and 3^rd applicants.  WP1 and WP2 were not caught.

17.About 5 seconds after the police investigation turned overt, the 4^th and 5^th applicants hurriedly walked along Pitt Street, past Canton Road and Reclamation Street in the direction of Shanghai Street.  They were followed by a police officer as they went into Shanghai Street and then, via Public Square Street, to a MacDonald’s restaurant in Prosperous Garden opposite Yau Ma Tai Police Station.  There, they were subsequently arrested by two police officers.

18.None of the applicants elected to give or call evidence.  Each had been interviewed under video.  Whilst admitting that they had been present in Tung On Street, none of them admitted being party to an attempted robbery or to any other criminal or non-criminal purpose involving Mr Fung.

The Reasons for Verdict

19.The judge correctly recognized that the prosecution case depended upon the drawing of inferences and whether the only reasonable inference that could be drawn from the primary facts adduced by the prosecution was that there was a joint enterprise to rob Mr Fung and that each of the applicants and WP1 and WP2 were party to it and that the joint enterprise had moved beyond activities in preparation for such a robbery so as to constitute an attempt.

20.The judge first addressed the inferences that could be drawn in respect of the 1^st, 2^nd and 3^rd applicants.  He said that they, WP1 and WP2 had arrived at Tung On Street shortly after 6.30 a.m., approximately 40 minutes before Mr Fung left home.  He noted that although they were consuming some beer, there was no apparent reason why they should congregate in a street like Tung On Street at that hour of the morning.  They had discussions for several minutes as a group on two occasions and following the second discussion, the 1^st applicant had made gestures which, the judge was satisfied, appeared to be giving directions to the others.  Thereafter, they split into two groups.  The 2^nd applicant and WP2 went to the pavement on the opposite side of Tung On Street from where Mr Fung would emerge, and the 1^st and 3^rd applicants and WP1 went to a position adjacent to the entrance to that alley.  The two groups then waited in those positions for approximately 10 minutes and only began to move when Mr Fung came out of the alleyway carrying the bag containing the money.  The two groups then moved in parallel on either side of Tung On Street in the same direction as Mr Fung.

21.The judge noted that it was apparent to him from the CCTV footage that the applicants were not simply strolling purposelessly but were, in fact, walking purposefully along the street.  The 1^st applicant, who led the group on the even numbered side of the street, was wearing a face mask and a cap.  WP1 was carrying a bottle.  The judge was satisfied that on the other side of the street WP2 was also carrying a bottle.

22.The judge was satisfied that it was not a coincidence that the applicants were waiting at or opposite the entrance of the alleyway at 2‑4 Tung On Street in the way that they were, nor was it a coincidence that they should move off in the same direction as Mr Fung once he started walking up Tung On Street.  The judge had no difficulty in being satisfied that their objective was Mr Fung.  He noted that when Mr Fung crossed the road to his vehicle, WP2 came around the front of Mr Fung’s vehicle, followed by the 2^nd applicant, and stood behind Mr Fung while the 1^st and 3^rd applicants started to cross the road to Mr Fung.

23.The judge then expressed himself satisfied that the only reasonable inference from all the circumstances is that the 1^st applicant, the 2^nd applicant, the 3^rd applicant, WP1 and WP2 were party to a joint enterprise and that the joint enterprise was to rob Mr Fung.  He concluded that any other explanation for their activities was fanciful.  He drew this inference without considering whether it had been proven that the applicants had knowledge that Mr Fung had something valuable in his possession.

24.The judge said that in reaching that conclusion he had taken into account the various explanations given by each applicant to the police for their presence and actions at the scene.  He rejected those accounts as clearly untrue and attached no weight to them.

25.In respect of the 2^nd applicant there was also the fact that he had a false Form 8 Recognizance in the name of a Major Singh and that he had pretended to the police that this was his true name, though he subsequently revealed that his real identity papers were at his home in Temple Street.  The judge also accepted the evidence of the police officer that the 2^nd applicant was only apprehended after a struggle as he ran down Lee Yip Street after the police operation had been turned overt.  However, the judge did not infer guilt from the fact of the 2^nd applicant’s possession of the false Form 8 or the evidence of his flight and struggle as he said that those facts were open to alternative explanations and he would not have inferred guilt if they had been the only evidence against the 2^nd applicant. However, on the basis of the evidence as a whole, the judge was in no doubt that the 2^nd applicant was a party to the joint enterprise to rob Mr Fung.

26.The judge went on to consider the evidence against the 4^th and 5^th applicants.  He noted that they had arrived in Tung On Street at approximately the same time as the 1^st to 3^rd applicants and WP1 and WP2, approximately 40 minutes before the attempt was made to rob Mr Fung.  During those 40 minutes they joined the group on two occasions, initially for about 5 minutes in Tung On Street, where there was a discussion at about 6.38 a.m. and later, just before 7 a.m.  The judge found significance in the fact that Tung On Street is a one-way street and the only point a vehicle would lawfully access that stretch of Tung On Street was through the junction of Pitt Street and Tung On Street and it was at this intersection that the 4^th and 5^th applicants were standing.  He said that the position at which they were standing would have enabled them to warn the other applicants if, for instance, a police vehicle had approached.

27.All these factors persuaded the judge that the only reasonable inference was that the 4^th and 5^th applicants were party to the joint enterprise to rob Mr Fung.

28.That inference was strengthened by the evidence that immediately after the police operation was turned overt, both the 4^th and 5^th applicants walked away from the junction in a hurried manner along Pitt Street.  The judge was not willing to regard their sudden and hurried departure as a coincidence.

29.However, before reaching the conclusion that they were a party to the joint enterprise, the judge did bear in mind the video recorded interviews that each had given to the police.  He considered the exculpatory explanations contained in those interviews but he did not believe them.  Having rejected their account he said he was satisfied that both of them were party to the joint enterprise to rob Mr Fung.

30.The judge then went on to consider whether one or more of those acting pursuant to the joint enterprise had performed acts which were beyond merely preparatory to the commission of the offence of robbery.  After reviewing the evidence, the judge was satisfied that the acts performed by those closest to Mr Fung indicated a fixed, irrecoverable intention to go on to commit the complete offence of robbery, unless they were involuntarily prevented from doing so.  He said he was satisfied that there was an attempt to rob Mr Fung and that attempt was pursuant to a joint enterprise to rob him to which all of the applicants were party.  He thereupon convicted all the applicants of the offence of attempted robbery.

The Grounds of Appeal

31.There are three grounds of appeal but essentially only one complaint. The first ground of appeal is really just stating the fact that the judge’s verdict was based upon an inferential finding that the applicants intended to rob Mr Fung.

32.The second ground of appeal complained that there was insufficient evidence from which such an inference could be drawn.

33.The third ground of appeal is that such an inference was not the only reasonable inference which could be drawn from the facts which had been proved in the case.

34.The fourth ground of appeal is simply that in all the circumstances the conviction of the applicants was unsafe and unsatisfactory.

35.In support of these grounds of appeal, the applicants’ counsel, Mr John Dunn, refers us to the cases of Tang Kwok-wah v HKSAR (2002) 5 HKCFAR 209 for the proposition that before an inference can be drawn against a defendant in a criminal case the facts upon which it is based must be proven to the usual criminal standard, and the case of Kwan Ping‑bong v R (1979) HKLRD 1 for the proposition that before drawing an inference adverse to a defendant the judge must be satisfied that it is the only reasonable inference which can be drawn from the facts proven to the usual criminal standard.  There is nothing novel in either of these propositions and the only issue is whether they were properly applied by the judge to the facts of this case.

36.From these propositions Mr Dunn argues that before the judge could draw the inference that the applicants were attempting to rob Mr Fung, the prosecution was obliged to prove beyond reasonable doubt that the applicants knew that Mr Fung was carrying a large sum of money on his person.  Mr Dunn argues that in the absence of this fact being proven, other competing inferences were equally available.  He said that even though there was evidence to show that the applicants were working together pursuant to a joint enterprise and that the target of the enterprise was Mr Fung, that does not mean that the purpose of their joint enterprise was to rob Mr Fung.  He said that reasonable alternative inferences available from the proven facts were that the applicants might have been hired by someone to assault, intimidate or otherwise scare Mr Fung for reasons connected with his business.

Discussion

37.The point being advanced by the applicants is simply that absent proof that they knew that Mr Fung was carrying money, there are other inferences available that can explain their conduct.  The fact that Mr Fung was, in fact, carrying money does not mean that the applicants knew this.  It is said that the judge allowed this fact to colour his approach to the inference he drew that the purpose of the joint enterprise was to rob Mr Fung.

38.Mr Dunn conceded that the applicants were acting pursuant to a joint enterprise and that the target of their actions were Mr Fung.  But, that concession should not divert attention from a detailed consideration of the applicants’ actions in order to determine whether the inference of robbery that the judge drew was the only reasonable one available to him.

39.The applicants’ actions show that they knew where Mr Fung lived and they knew what time he was likely to leave home.  They arrived early at the scene of their joint enterprise and wandered about and congregated together in what could be inferred as becoming familiar with the location and discussing their plan and finalizing their instructions.  There were seven involved in the joint enterprise and two of them were clearly being posted as lookouts.  Everything points not just to a very carefully planned criminal enterprise but also one based upon knowledge of the victim.

40.The exit of Mr Fung’s residential building was a small alleyway that was perpendicular to Tung On Street.  Tung On Street, whilst not busy did have cars passing down it occasionally and other persons present in the street.  If all that was being contemplated was an intimidatory conversation accompanied by some threat of, or actual, violence then the alleyway would have been a much better location for that kind of activity as it would have offered more privacy.  Furthermore, seven persons, with two being stationed as lookouts some distance away, would have been unnecessary for such a task, especially as the victim was 54 years of age.

41.Now, add to this matrix of facts the further fact that the victim was in possession of $541,000, remembering that this was clearly not an opportunistic criminal enterprise as is evident from the preparations of the applicants.  Quite clearly, the actions of the applicants had all the hallmarks of a very carefully planned criminal enterprise whose target was a specific individual about whom the applicants possessed information.

42.It is not just that the number of persons involved and their actions are consistent with the purpose of the joint enterprise being robbery; it is also that the facts, for the reasons we have explained, do not seem consistent with any other criminal purpose.

43.Mr Dunn is right to say that there is no direct evidence that the applicants knew that Mr Fung was in possession of this large sum of money.  But there is no reason why this fact of their knowledge cannot be inferred from the other proven facts.  It is a reasonable inference which clearly arises from the proven facts and in our view it is the only reasonable inference.

44.It must be remembered that there was no evidential basis to suggest any of the other inferences raised in submission by Mr Dunn.  There was, for example, nothing to cause the judge to consider that Mr Fung may have had enemies who wished to harm him; nor was there anything from any of the applicants to point to their actions being part of some other criminal enterprise, or even non-criminal activity, involving Mr Fung.

45.The absence of any evidence from any source leaves the primary facts not just uncontradicted but un-supplemented.  From these facts the court is required to determine what inferences can be drawn but in doing so it must not speculate.  Drawing inferences that have no primary factual foundation to support them is to engage in speculation, and this is particularly relevant to the inferences which Mr Dunn submits also arise from the evidence.

46.For the reasons we have given we have no doubt that a reasonable inference that can be drawn is that the applicants knew Mr Fung had money in his possession and that the purpose of the joint enterprise was to rob him of it.  We are not satisfied that, on the primary facts as outlined above, an inference of a different criminal purpose or of any non-criminal purpose involving Mr Fung is reasonably available.

47.We have no doubt that in inferring that the purpose of the joint enterprise was robbery the judge was also inferring knowledge by the applicants of the fact that Mr Fung was in possession of a large sum of money and in our view he was, on the evidence in this case, entitled to do so.  We find no merit in the grounds of appeal.

Conclusion

48.For these reasons we dismissed the application for leave to appeal.

Mr Wong Kam-hing, SADPP, of the Department of Justice, for the respondent

Mr John Dunn, instructed by John M. Pickavant & Co, assigned by DLA, for the applicants