HKSAR v. Wong Ping Hung and Another

DCCC 264/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 264 OF 2014

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Reasons for Verdict

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1.There are 7 defendants in this case. Together they face one joint charge of burglary (charge 1). D4 faces one additional charge of remaining in Hong Kong without the authority of the Director of Immigration (charge 2) as well as one charge of using a forged identity card (charge 4). D5 faces one additional charge of remaining in Hong Kong without the authority of the Director of Immigration (charge 3).

2.When trial commenced, all 7 defendants pleaded not guilty to the burglary charge. D4 and D5 however pleaded guilty to their respective immigration and using forged identity card charges.

3.On the 7^th day of trial, D1 to D5 reversed their plea on charge 1 and pleaded guilty to burglary. This Reasons for Verdict deals therefore only with the trial of D6 and D7 on the joint charge of burglary.

Background

4.Based on information received, Police conducted covert surveillance on the defendants, whose names, age, height and outward appearance were known to the Police some 2 weeks before the burglary. There were also photos of the defendants distributed to the Police officers involved in the case for them to familiarize themselves with the outlook of the defendants and assist them in their surveillance.

5.A unit on the first floor of a building at no.135 Tai Nam Street was identified as the hide out of the defendants and D6 and D7 were seen to enter and exit the building on various occasions.

6.Brand Off Tokyo located at Shop B1 of Star House was identified by the Police as the defendants’ target of burglary.

7.On the night of 5^th December, police officers were deployed at different surveillance points in the vicinity of Star House in anticipation of the burglary.

8.At 3:06am on 6^th December, D1 and D6 arrived at Star Ferry pier. D2, 3, 4, 5 arrived together later. D7 was not spotted by the Police officers but according to his later confession, he was in a vehicle (licence plate MY217) that arrived at the pier and deliver 2 backpacks to one of the defendants. The contents of the backpacks were later found to include a crowbar and other equipment intended to be used in the burglary.

9.D1 to D5 stayed and wandered around the vicinity of Star Ferry pier. D6 wandered around for a while in the area at first, and then took a 3 minute taxi ride to Austin Road and got off and wandered around there alone.

10.At 5:34am, 2 of the defendants were seen on video footage taken by one of the Police officers to walk up the steps leading to the glass door entrance of Brand Off Tokyo. They used a crowbar and screwdriver to force open the glass door. One of them then signaled the other 3 defendants, who then quickly joined them up the steps and all 5 of them entered the glass door.

11.The footage does not show what happened after their entry but about 3 minutes later, all 5 of them were seen to quickly rush out from the same entrance. Police officers waiting in ambush came out and arrested D1 to D5. Meanwhile, Police officers who were tracking D6 in the Austin Road and Canton Road area also arrested D6.

12.At around the same time, an unmarked Police vehicle spotted MY217 in a bus lane of the bus terminus of Star Ferry pier and proceeded to intercept it. The vehicle suddenly moved forward, collided with the Police vehicle, reversed and then wriggled out of the lane and sped away. The vehicle was eventually found abandoned at a car park in the Tsim Sha Tsui area. Closed circuit television footage caught the driver getting out of the car and then a taxi to get away. Eye witness saw the driver taking off a jacket before leaving the vehicle.

13.D7 was arrested at Lo Wo Control Point the same morning at around 7 odd am and was taken to Ta Kwu Ling Police station where he was later dealt with by PW5 who cautioned and arrested D7 for the earlier burglary and collision of MY217 with the Police vehicle. Under caution, D7 said that he was only just sitting in the car ‘watching water’ (keeping a lookout), that he was not the driver and he did not know the driver. This confession was recorded in the Police officer’s notebook and D7 signed at various locations and wrote down that he understood as well as copied a declaration stating that he had nothing to add or amend. D7 was then taken to Cheung Sha Wan Police station where a video recorded interview was conducted. When PW5 sought to confirm with D7 his confession, D7 said he did not say those words.

Issues

14.5 prosecution witnesses gave evidence in court. PW5’s evidence relate to D7’s alleged confession. Of the 5 witnesses, only PW5  was cross-examined by counsel for D7. Neither counsel for D6 nor D7 cross-examined PW1 to PW4.

15.A large part of the prosecution case against D6 and D7 are based on 3 sets of facts admitted under s.65C of the Criminal Procedure Ordinance, Cap.221.

Issues in relation to D6

16.The issue in relation to D6 is, based on all the evidence available against D6, and in particular his contact with D4, his visits to the building where D1 to D5’s hide out was located, the movement of D6 on the night of the burglary and D6’s phone records, whether the prosecution persuade the court to draw the irresistible inference that D6 was ‘in it together’ with D1 to D5 when they committed the burglary.

Issues in relation to D7

17.The first issue in relation to D7 is whether the prosecution can prove beyond reasonable doubt the voluntariness of D7’s confession. If they can, the next issue is whether they can then persuade the court to put full weight on the confession to find that D7 was present in MY217 at the time of its collision with the Police vehicle and the subsequent getaway. The third issue is whether the prosecution can persuade the court that, based on the confession and all the circumstantial evidence, D7 was ‘in it together’ with D1 to D5 when they committed the burglary.

Summary of Prosecution evidence

PW1 Officer Cheng

18.Ms. Cheng was attached to the Criminal Intelligence Bureau at the material time. She was instructed to be on surveillance duty on 5 December 2013. She set up an observation post in Tsim Sha Tsui on the night of 5 December in the vicinity of the Star Ferry pier. From there, PW1 was able to keep an eye on the stretch of Canton Road that leads in and out of the Star Ferry area, as well as the entrance and exit of the McDonald’s restaurant at Star House. PW1 however was not able to see Watsons’ or the entrance of Brand Off Tokyo.

19.At around 3:06am, PW1 saw an urban taxi PS7890 drove into the bus terminal of Star Ferry pier. The taxi stopped outside the public toilet there. One Chinese male got out, stopped and looked around for a few seconds, then a second Chinese male got out. The 2 of them walked together towards the public toilet and the witness lost sight of them from her observation point. PW1 was about 150 meters away from them at that time. There were street lamps in the area, lighting was sufficient, and PW1 had the use of a pair of binoculars allowing her to see clearly the face and clothing of the men.

20.During examination-in-chief, it was put to the witness that it was not disputed that one of the 2 Chinese males was D6. Counsel for D6 did not indicate his objection to the question being phrased that way.

21.At 3:11am, PW1 saw the second male who got out of the taxi walked from Salisbury Road to Canton Road. He took 20 to 30 odd steps and then walked back to Canton Road, turned left towards Kowloon Park Avenue and then left PW1’s line of sight. This time when PW1 saw the second male, PW1 was about just 20 meters from him. PW1 used both her binoculars and her naked eyes to observe the man. Lighting was sufficient and she was sure that the man was the other man who got out of the taxi earlier at 3:06am. PW1 was able to see the man’s clothing was the same as the man before. At a later identification parade, PW1 identified D1 as that male, the man who got out of the taxi with D6.

22.At 4:45am, PW1 saw D6 walked from the bus terminus towards the junction of Salisbury Road and Canton Road and got onto an urban taxi FK3810. The taxi moved along Canton Road, turned into Salisbury Road and then into Nathan Road and left PW1’s line of sight.

23.At 5:27am, PW1 saw a white private vehicle MY217 entering the Star Ferry Bus Terminus. PW1 however did not see how many people were inside the vehicle but to the best of her knowledge, the vehicle was being observed by her colleague who were also carrying out covert observation duty.

24.During cross-examination, counsel for D1 pointed out that in her witness statement she wrote that the 2 men got out of the taxi together whereas in court she said they got out one after the other. I find this discrepancy insignificant.

25.PW1 confirmed that she had received photos of target suspects some 2 weeks before the night of the operation and she had them in her possession when she saw the 2 men got out of the taxi and she did compare the photos to the men and confirmed that D1 was one of the men in the photo. She had taken the time to familiarize herself with the faces in the photos. For reason that will become apparent, I find that whether PW1 was matching the men to the faces in the photos or not is not relevant to the prosecution proving its case against D6 and D7.

26.D6 and D7’s respective counsel did not cross-examine PW1.

PW2 Officer Cheng

27.Mr. Cheng was also attached to the CIB. He was also instructed to perform surveillance duty on 5^th and 6^th December 2013 in the Star Ferry pier area, on the roof of Cultural Centre. PW2 was alone but equipped with a pair of binoculars. He was able to see Star House, Star Ferry pier bus terminus. He was not able to see the bell tower nor the public toilet.

28.At 3:06am, PW2 learned over his walkie-talkie that 2 suspects were on a taxi and the taxi had arrived at Star Ferry pier. PW2 did not see them got out of the taxi.

29.At 3:11am, PW2 saw someone that looked like D1 walking outside Star House and walking towards Canton Road and Salisbury Road. At 3:12am, the man turned left into Canton Road and out of PW2’s sight. One minute later at 3:13am, the same man turned back into Salisbury Road and walked towards Kowloon Park Avenue, and then PW2 lost sight of him again. It is admitted facts that PW2 had later on identified D1, D2, D3, D5 and D6 at a properly constituted identification parade. In any event, it is PW2’s evidence that lighting was sufficient in the area for him to see clearly through his binoculars the faces of the men.

30.About 6 minutes later at 3:17am, D1 walked out from Salisbury Road, went towards the Star Ferry pier bus terminus direction, and then walked back and forth in the Star House and bus terminus area, occasionally using his mobile phone, for about 5 to 6 times.

31.About one and a half hour later at 4:45am, PW2 saw D6 walked towards Canton Road from the Star Ferry bus terminus area, then PW2 lost sight of him.

32.2 minutes later at 4:47am, D2, D3, D4 and D5 arrived at the Star Ferry pier in a taxi with license plate DC1828. D2, D3 and D4 walked towards Star House while D5 walked towards Star Ferry pier.

33.At 4:50am, D2, D3 and D4 walked back and forth outside Star House. At 04:54am, all 4 walked towards the Star Ferry pier direction and PW2 lost sight of them.

34.37 minutes later at 5:27am, PW2 saw a white private vehicle MY217 arrived at the bus terminus. D1, D2 and D5 walked towards the vehicle and D2 took out a black backpack from the car and handed it over to D5. D2 then took out another black backpack from the car and carried it himself. MY217 stayed there.

35.The 5 defendants, D1 to D5 walked towards the phone booth and rubbish bin area and D5 put down the backpack next to the rubbish bin. D2 also put his backpack down on the pavement next to the rubbish bin. D5 later took up the backpack and together with D1 walked back and forth outside Brand Off Tokyo.

36.At 5:34am, D1 and D5 eventually walked into the ground floor entrance area of Brand Off Tokyo. From where PW2 was stationed, he was not able to see into the entrance area. Meanwhile, D2 picked up his backpack and walked to the phone booth area.

37.2 minutes later, at 5:36am, D2 and D4 also walked to the Brand Off Tokyo entrance area and PW2 was not able to see them once they were up the steps into the area.

38.1 minute later at 5:37am, D3 also walked at a brisk pace into the Brand Off Tokyo entrance area and once he stepped up, PW2 was not able to see him.

39.2 minutes later at 5:39am, all 5 men ran out from the entrance area and Police officers went into pursuit.

40.During cross-examination by D1, PW2 confirmed that 6 photos of the targeted suspects were given to him and other Police officers earlier by his superior for them to familiarize themselves with the appearances of the suspects prior to the operation. PW2 confirmed he had the photos with him during the operation that night when he was cross-examined by D5’s counsel.

41.D6 and D7’s respective counsel did not cross-examine PW2.

PW3 Officer Lui

42.Officer Lui was also attached to the CIB at the material time and was instructed to conduct covert surveillance on 5^th and 6^th December 2013. Officer Lui brought with him video recording equipment and made video recordings of the entrance area of Brand Off Tokyo from 3am to 5:43am on 6 December 2013 on 2 digital video tapes. It is PW3’s evidence that what was recorded on the tapes was in fact what he had seen with his own eyes either directly or through the camera display on that night during the recording period.

43.Officer Lui was positioned on the rooftop of Star Ferry pier as shown in exhibit P-11 sketch. Officer Lui in examination-in-chief gave evidence of what he saw from 4:16am onwards, how he saw 2 men walking to the entrance area of Brand Off Tokyo, how he believed that they were prying open the glass door of the entrance, how 3 other men joined them and went through the entrance, believed to have gone further into Brand Off Tokyo, how at 5:39am he saw the 5 men who entered earlier came running out from the entrance. The footages were played in open court. The contents of the video footages confirmed the evidence of PW3. During the playing of the footages, PW3 pointed out who the people were and what they were seen doing. It is PW3’s evidence that prior to starting the video recorder on the night, he had synchronized the clock of the recorder with the time of the control centre and therefore the time shown on the footage is the accurate time.

44.PW3 later took part in an identification parade and identified D1 to D5 as the 5 men who entered and later came out of Brand Off Tokyo on that night.

45.At the end of cross-examination of PW3 by D4’s counsel, D1 to D5 indicated to the court that they would like to reconsider their plea. The case was then adjourned so that counsel would be able to take instructions. When the case resumed on 26 August 2014, D1 to D5 reversed their plea on charge 1 and all pleaded guilty to their joint charge of burglary. A set of summary of facts specifically for the purpose of their pleas was prepared. D1 to D5 admitted to the summary of facts on 29 August and were convicted. Their mitigation was reserved until the end of D6 and D7’s trial, which resumed on 1^st September.

46.D6 and D7’s respective counsel did not cross-examine PW3.

PW4 Officer Mok

47.Officer Mok was attached to CIB on 6 December 2013. He was instructed to take part in a covert surveillance and tracking operation on that day. It is not disputed that PW4 later on took part in a properly constituted identification parade and had identified D6 as related to this case.

48.At about 4:45am on 6 December, PW4 heard over his walkie-talkie that D6 had got on to a taxi FK3810 at Canton Road near Salisbury Road. PW4 was at that time inside a government vehicle.

49.1 minute later at 4:46am, PW4 saw FK3810 turning into Nathan Road from Salisbury Road. PW4’s vehicle immediately followed the taxi.

50.3 minutes later at 4:49am, the taxi stopped on Nathan Road near Austin Road. PW4 got out of the government vehicle that was tailing the taxi after his car had gone passed the taxi. PW4 looked back and saw a person getting out of the taxi. It is PW4’s evidence that the person was D6.

51.After getting out of the taxi, D6 did not do anything special, he just walked along Austin Road, Scout Path, Canton Road, into the pedestrian tunnel, came out the tunnel, walked aimlessly along Canton Road after coming out the tunnel at the Austin Road and Canton Road exit, walked for about 15 odd minutes within a 100 meter area without any apparent purpose, looking at cars, people. There were very few people since it was very late and the area was just a big construction site. D6 was carrying a diagonally carried bag on his person at the time.

52.After observing D6 for about 15 odd minutes from the time D6 came out of the pedestrian tunnel, surveillance of D6 was handed over to another Police officer and PW4 ceased following D6.

53.D6 and D7’s respective counsel did not cross-examine PW4.

PW5 PC48675 Officer Fong

54.Officer Fong was attached to Regional Crime Units on 6 December 2013, he has since been promoted to the rank of Sergeant. His evidence relates to the arrest of D7 as well as his alleged confession.

55.On 6 December 2013, Officer Fong was instructed to go to Ta Kwu Ling Police station to arrest D7. He arrived at 10am and found D7 in a temporary detention cell in the report room of the station. PW5 took D7 into interview room 1 at around 10:26am and said to D7 in Punti that he was arresting D7 for attempted burglary and crazy driving, because the Police had reason to believe that at 5:35am on 6 December 2013, D7 and another 6 men attempted to burgle a shop located at 1^st floor, Shop B, Star House in Tsim Sha Tsui named Brand Off Tokyo; and on the same morning at 5:39am, at Tsim Sha Tsui Star Ferry bus terminus D7 drove private vehicle MY217 and caused it to collide with another private vehicle PA6534, causing the Police officers inside PA6534 to be injured.

56.After PW5 cautioned D7, D7 said in Punti, “Ah Sir, I was just sitting in the car watching water, I was not the person who drove the car, I don't know the driver. Other things I don't know so much.” PW5 immediately recorded what D7 said in his Police notebook, exhibit P-75.

57.PW5 then handed over the notebook to D7 for him to read the relevant pages. D7 appeared to read the contents for about 4 to 5 minutes. PW5 then read out the contents to D7 himself. After that, PW5 told D7 that he could make amendments and he asked D7 to copy down the declaration and to sign. It is PW5’s evidence that D7 did make the confession voluntarily and that he had accurately recorded the confession in his notebook.

58.PW5 later on conducted a video recorded interview with D7 when they were back at Cheung Sha Wan Police station. The video recorded interview started at 4:03pm. The voluntariness of the video recorded interview is not disputed. In this video recorded interview, D7 explicitly denied that he had made the alleged confession earlier on.

59.The defendant proceeded to challenge the admissibility of the alleged confession and the Special Issue was dealt with by way of Alternative Procedure.

D7’s evidence on the Special Issue

60.D7 fully understood his rights and gave evidence on the Special Issue.

61.It is D7’s evidence that he was first arrested by Police officer on 6 December at around 7am at Lo Wu report centre by a certain PC3400 and then brought to Ta Kwu Ling Police station. At around 10am, he was contacted by PW5.

62.PW5 told D7 that he was cautioning him for a case of crazy driving and burglary. D7 explained to him that he had nothing to do with it. One of the Police officers then said to D7 that he did not have to explain so much since they were not taking a formal statement, that nowadays the taking of statement is very fair and that everything would be video taped and a disc will be given to him. The Police officer told D7 he better cooperate, since D7 was not arrested at scene, he will be allowed to go after the statement had been taken. D7 told the officer that he felt very tired, that he stayed up the night before playing mahjong . PW5 also said that if they cannot find fingerprints and DNA samples then they will not be able to charge D7.

63.One of the Police officers, PW5, gave D7 a notebook and told him to sign at various places. D7 did not look at the contents and just signed. The reason why D7 did that was because the Police officer had said it was not a formal statement and that the full process would involve a video recorded interview.

64.D7 was shown the notebook and confirmed that all the signatures that PW5 said were his were in fact signed by himself. D7 however did not see when PW5 wrote the contents of the notebook. Apart from the signatures, D7 also confirmed that he did write the words he understood and copied the declaration on page 16 of the notebook.

65.D7 denied that he had said the words about how he was just keeping a lookout. PW5 never read back the contents of the notebook to D7. It was only when he was brought back to Sham Shui Po Police station that he was given a copy of the notebook that he had the opportunity to read for the first time the contents of the notebook. D7 said he did ask a uniformed Police officer at the station why it was so written in the notebook but the officer told him not to bother the officer and that there will be a formal statement taken later.

66.D7 was later brought to Cheung Sha Wan Police station and he took part in a video recorded interview at around 4pm. From when D7 first signed in PW5’s notebook to the time of the video recorded interview, D7 did not contact any lawyers or non-Police people.

67.During cross-examination, D7 was asked if he wanted to know what was written in the notebook when PW5 asked him to sign on the notebook. D7 answered that he “did not think to read it”.

68.D7 was asked if he wanted to know what the Police had asked him to sign against and D7 said he did not want to know. He said that since he was first arrested at Lo Wu, he had been asked to keep signing names like that.

69.When being pressed for an answer as to why D7 did not want to read what was written in the notebook, D7 added that he was very tired and did not think to read inside the notebook. Furthermore, PW5 did not give D7 a chance to read the contents. When the notebook was put in front of him for his signature, D7 did not look above the place where he signed, and it so happened that the Police officer’s finger might have covered the words directly above where he was told to sign.

70.In relation to the 3 words of nothing to amend, D7 understood what the words mean but he did not think about what it was that he was supposed to be allowed to amend because he was very confused and did not really think about it.

71.D7 confirmed that he is 40 years old and had been working for a few decades.

72.When D7 was asked about the declaration he had written down at page 16 of the notebook, he said he did not understand what he was writing about and did not think about it. He just copied it down because PW5 told him to do so. His brain did not know what he was writing down.

73.In re-examination, D7 said he had been up since around 10am or 11am on 5 December, so by the time he first saw PW5 at Ta Kwu Ling Police station, he had not slept for around 24 hours.

Ruling on the Special Issue

74.It is for the prosecution to prove beyond reasonable doubt that D7 in fact made the confessions and he made it voluntarily. It is not for D7 to prove his voluntariness nor is it an exercise to compare whether D7 or PW5’s version of fact is the more probable.

75.Nevertheless, I find that D7’s version that he had no idea he was indicating on the notebook that he had read the contents and that he had nothing to change is incredible beyond belief.

76.D7 had signed on the notebook 3 times, wrote ‘nothing to change’ and wrote the full declaration and then signed against both. D7 is 40 years old and he agreed that he had been working in society for a few decades. D7 was stopped when he was leaving Hong Kong at Lo Wu control point, after he allegedly played mahjong throughout the night before. According to him he had nothing to do with the burglary and driving whatsoever. He must have been in a real state of shock when he was stopped for no good reason right when he was about to leave Hong Kong, arrested for something,  detained for hours in a Police station and then being told later on that he was going to be taken to yet another Police station. Yet, D7 was so trusting of the Police that he did not think to read anything in the Police notebook that he was being asked to sign, nor did he pay attention to or even understand what the Police officer had asked him to copy down in the Police notebook. This evidence is bordering on the ridiculous and I refuse to accept it. I find the defendant lying when he said he had no idea what he was writing when he wrote ‘nothing to change’ and the full declaration. I find that he must have known clearly what he had written and he meant to confirm what he had told the Police officer as well as to confirm he understood what was written and that he had nothing to add or amend.

77.More importantly, I find PW5 telling the truth when he said that those words as recorded in his notebook and signed against by the defendant were in fact said by the defendant after the Police officer had arrested and cautioned him and that no one had forced, induced or threatened D7 in order for him to made the confession.

78.Only D7 himself would know the real reason why there was a change of heart later on in his video recorded interview and it is not for the court to speculate. PW5 had no choice but to carry on with the video recorded interview when D7 decided to lie about the earlier notebook statements of D7, given that D7 had already signed and all his rights had been explained to him.

79.Counsel for D7 mentioned that the line spacing in the notebook appeared to have been in such a way to suggest that PW5 had written everything down first and just left some space for D7 to sign afterwards. I find this mere speculation and is in any event insignificant. Furthermore, I find that the line spacing is also consistent with PW5’s version of facts.

80.I accept PW5’s evidence that D7 was capable of being interviewed at the time D7 made the notebook statement.

81.I ruled that the prosecution had proved beyond reasonable doubt that D7 did make the confession and that he made it voluntarily.

82.The Prosecution formally closed their case against D6 and D7 afterwards. There was no no case submission from either D6 or D7 on the general issue and I found that there is a case to answer on charge 1 against D6 and D7.

D6 and D7’s case on the General Issue

83.D6 and D7 fully understood their rights and elected not to give evidence nor call any defence witness.

Admitted Facts

84.D6 and D7 through their respective counsel admitted to 3 sets of facts under s.65C of the Criminal Procedure Ordinance for the purpose of present proceedings.

Summary of the 1^st set of admitted facts

85.It is admitted fact that in the afternoon of 21 November 2013, D4 falsely claimed he was Mr. Wong and used a forged identity card as his proof of identity to enter into a provisional tenancy agreement for 1A, no.135 Tai Nam Street at Wah Kee Estate Agent. A formal tenancy agreement was signed the following day by D4.

86.As at the time usage of the forged identity card to enter into the said tenancy agreement, D4 was remaining in Hong Kong without the authority of the Director of Immigration having entered Hong Kong illegally.

87.D1, D2 and D3 are all mainlanders. D1 and D2 entered Hong Kong on two-way permits on 2 December 2013 (4 days before the burglary) while D3 entered on 5 December (1 day before the burglary). All 3 of them were permitted to stay in Hong Kong for 7 days.

88.D4 and D5 both entered Hong Kong illegally and hence it is not clear when they actually entered Hong Kong. Based on the above admitted facts, D4 was already in Hong Kong on 20 November.

Summary of the 2^nd set of admitted facts

89.It is admitted facts that D1 to D5 illegally entered the glass door of Brand Off Tokyo store located at Shop B, 1^st floor, Star House, no.3 Salisbury Road in Tsim Sha Tsui, with the intention to steal therein.

90.Prior to the burglary taking place, the Police had already been paying attention to D1 to D5 and to the place where they were residing, which was the same place that D4 had rented on 21 November. Police officers of the Criminal Intelligence Bureau conducted many days of tracking and covet surveillance, using photographic equipment to record the action of the defendants.

20 November

91.On 20 November 2013 at about 10:30pm, Police officer on surveillance duty saw D6 handed over one telephone SIM card and a $500 note to D4 inside an eatery. Upon receiving the SIM card, D4 opened the wrapping and then put the SIM card into a mobile phone he was holding, pressed some buttons, and D6 picked up his own phone to have a look.

21 November

92.1 day later on 21 November at about 3:30pm, Police officer on surveillance duty followed D4 and D6 and saw them come out together from an eatery and went to a park to talk. Then the 2 of them walked pass many streets in the area, paying attention to the advertisements displayed by the estate agents.

93.At 5:45pm the same day, D4 entered one of the estate agency (Wah Kee Estate Agent). He came back out at 6pm and met up with D6 who was nearby. D4 and D6 then walked to Arran Street Sitting-out area and met up with D7. The 3 of them then walked to Ling Kee Restaurant on Reclamation Street and had meal together.

94.At about 6:52pm the same day, D4, D6 and D7 left Ling Kee Restaurant together. They walked towards Prince Edward Road West direction, paused on the street to talk, and then D4 entered the said Wah Kee Estate Agent shop while D6 and D7 stayed outside and talked.

22 November

95.The following day, at about 2:23pm, D4 and D6 met up at the Arran Street Sitting-out area and talked.

96.At 3:42, D4 and D6 walked together from Tai Nam Street to Wah Kee Estate Agent. D4 entered the store alone while D6 walked alone to Poplar Street (白楊街).

25 November

97.3 days later, on the night of 25 November, D6 was seen to entered the building where the other defendants were staying on two occasions, each time carrying something.

27 November

98.2 days later, on the night of 27 November, D6 was seen to enter the building where the other defendants were staying on 4 occasions. On 3 of those occasions he brought along something.

28 November

99.1 day later, on the night of 28 November, D6 and D7 entered the building 2 times. Each of them brought along something once.

30 November

100.2 nights later on 30 November, D6 and D7 entered the building together. Afterwards, D6 went back to the building once, bringing alone something.

4 and 5 December

101.4 days later, at around 1:08am, D6 and D7 entered the building and then left at 2:15am. D6 visited the building again at 5:32pm later in the day, bringing along something.

102.Still on the same day, at around 11:23pm, D1, D2, D6 and D7 walked into the building together. D7 and D6 left at 00:37am and 2:53am respectively.

103.Police officers were deployed at various locations a few hour before D1 to D5’s entry into Brand Off Tokyo through the glass door, observing their action. It is admitted fact that the Police had all along kept D6 under surveillance.

From Tai Nam Street to TST
6 December
2:52am

104.D6 was seen to come out from the Tai Nam Street building at around 2:52am on 6 December (about 15 minutes before D1 and D6 were seen by PW1 to come out of the taxi PS7890 that stopped outside the public toilet at Star Ferry pier). D6 stood on Maple Street and kept looking up towards the Tai Nam Street building. After a few minutes, D1 and D2 came out of the building and walked towards a white private vehicle. They talked with the driver of the white vehicle and then the vehicle drove away and D2 went back into the Tai Nam Street building.

105.D1 and D6 talked for a while and then got on a taxi with license plate PS7890 and left the area.

3:06am

106.It is admitted fact that the taxi arrived at Star Ferry pier at about 3:06am and D1 and D6 got off there. After they got off the taxi, D1 walked along Salisbury Road towards Canton Road and Kowloon Park Drive (九龍公園徑) and then returned to the bus terminus area, as well as wandering in the vicinity of Star Ferry pier and Star House. D1 at one point walked to outside Brand Off Tokyo and stood there for a while looking at the store and then returned to the bus terminus.

107.As for D6, after he had gotten of taxi PS7890, he walked towards Canton Road and got onto another taxi FK3810. After a few minutes, the taxi arrived at Nathan Road and D6 got off the taxi and walked along Austin Road to Canton Road. D6 then wandered on Canton Road and talked on his mobile phone a few times.

4:34am

108.Roughly about one and a half hour after D1 and D6 arrived at Star Ferry pier, D2 and D5 were seen to walk out of the Tai Nam Street building and got on to a taxi with licence plate DC1828 at Boundary Street. The taxi drove back to the Tai Nam Street building and stopped outside the building. D2 got off the taxi to wait. D3 and D4 then came out from the building and boarded the taxi together with D2. The taxi was driven to Star Ferry pier and D2, D3, D4 and D5 got off the taxi there.

5:27am

109.Slightly less than one hour after D2 to D5 arrived at Star Ferry pier, D1, D2 and D5 were seen to be talking on the pavement near Star House. They then walked to a white vehicle MY217 which was stopped at the bus terminus. D2 took out 2 backpacks from the white vehicle. D1 to D5 then hung around outside the store.

5:34am

110.About 7 minutes later, D1 and D5 left the group and moved to the glass door of Brand Off Tokyo. They took out equipment from the backpack that they were carrying to pry open the anti-burglary glass door. D1 to D5 then entered the door one after the other. However, not long after their entry they all retreated and ran out. At this point, Police officers in ambush nearby showed themselves and gave chase, in the end apprehending all 5 defendants and arrested them.

111.D1 to D5 tried to escape and put up a struggle prior to their arrest. They dropped or things had fallen out from their persons, including screwdriver, crowbar, torchlight, nylon bag, mask, gloves and baseball cap etc. These were guarded by Police officer and later seized.

5:40am

112.Right after D1 to D5’s burglary had been exposed, Police also immediately arrested D6 near the junction of Austin Road and Canton Road at 5:40am. D6 did not respond under caution.

113.Meanwhile, an unmarked police vehicle went looking for D7 and the MY217 white vehicle in the Star House area. The Police found the white vehicle hiding inside a bus passage inside the Tsim Sha Tsui bus terminus. When Police officer 34284 drove his unmarked Police vehicle up to intercept, MY217 suddenly and quickly started off and collided head on with the Police vehicle. MY217 then sped up and reversed and then moved around to try to avoid interception and did collide with the Police vehicle a second time. MY217 managed to get away and Police officers were injured in the incident.

114.MY217 was later found inside the Hung Hom Metropolis carpark. Upon investigation, the vehicle was found to have been stolen. An eye witness saw the driver of the white vehicle got off the vehicle and took off the upper garment and fled. Closed circuit television footage show the person getting on a taxi outside Hong Kong Coliseum.

Arrest of D7

115.D7 was arrested by Police 3400 on 6 December 2013 at Lo Wu Control Point.

Mobile phones, SIM cards or cases found on D6 and D7

116.Subsequent to their arrest, the Police seized a number of items on D6 and D7.

117.On D6, a phone that was in the hand of D6 when he was arrested, number 5934 3535. D6 also had 6 other mobile phones on his person at the time, 4 of those with a different SIM card and phone number, and 2 without any SIM card inside. There were also 2 Octopus cards and 2 masks.

118.On D7, the Police found 5 different Nokia mobile phones. None of the phones had any SIM card inside. The Police also found 4 SIM card cases on D7, but not the SIM cards. Each of the card cases has a different phone number. There was also 1 Octopus card on D7.

119.The Police made enquiries with the service providers and found that from 2:07:37am to 5:31:40am on 6 December 2013, there had been multiple phone contact between the various phone numbers.

D6’s outgoing calls

120.During that period, from the mobile phone that D6 was holding in his hand at the time of his arrest (5934 3535), a total of 16 outgoing calls had been made. Of those 16 outgoing calls, 7 were made to one of the numbers (5419 0595) found on the SIM card cases in the possession of D7 at the time of his arrest; 6 were made to the phone that was found on D2 when D2 was arrested (9697 3157); 3 were made to the phone that was found on D4 at the time of D4’s arrest (6736 4305).

D7’s SIM card case number outgoing calls

121.Of the SIM card case number found on D7 5419 0595, a total of 5 outgoing calls were made in the same period. All were made to the number of D6’s phone which D6 was holding at the time of D6’s arrest (5934 3535).

D6’s incoming calls

122.There were a total of 11 incoming calls to D6’s 5934 3535 phone number. Of those 11 incoming calls, 5 were from 5419 0595, being the number printed on one of the SIM card cases found on D7 at his time of arrest; 5 incoming calls were from the phone number of D2; and 1 from D4.

Octopus cards

123.Enquiries were made by the Police on the Octopus cards found on D1, D2, D6 and D7.

124.Records indicate that D2’s Octopus card was used to enter Lo Wu station at 10:02:09 on 2 December 2013. 6 seconds later, D1’s Octopus card was also used to enter Lo Wu Station.

125.D2’s card was used to exit at Sham Shui Po station at 10:57:08 the same day. 3 seconds later, D1’s card was similarly used.

126.Still on 2 December 2013, D6’s Octopus card was used to enter Tsim Sha Tsui MTR station at 20:24:31. 10 seconds later, D7’s Octopus card was also used to enter TST MTR station. At 20:34:49, D6’s card exited at Prince Edward MTR station. D7’s Octopus card was also used to exit the same station at 20:34:51, just 2 seconds later.

127.3 hours later at 23:16:28, D6’s card was used to enter Prince Edward MTR station. 17 seconds later, D7’s card was also used to enter the same station. 21 seconds later, D1’s Octopus card was presented at the customer service centre of Prince Edward MTR station and $100 was deposited into the card. 17 seconds later, the same thing was done to D2’s Octopus card.

128.After the deposits, D1’s card was used to enter Prince Edward MTR station at 23:17:36 and 15 seconds later D2’s card was similarly used.

129.D6’s card exited at TST MTR station at 23:30:09, with D1’s card following 2 seconds later.

130.D2’s card exited at Fortress Hill MTR station at 23:45:36 with D7’s card following 3 seconds later.

6 December 2013

131.At 6:15:48 on 6 December, i.e. about 35 minutes after D1 to D5 fled the burglary scene, D7’s card was used to enter Mongkok MTR station. The same card was then used to exit Lo Wo train station about 43 minutes later at 06:58:04.

DNA samples

132.Police took DNA samples from a water glass, a toothbrush and a towel that were found inside 1^st floor no.135 of Tai Nam Street. Upon matching, the water glass sample was found to match the DNA sample provided by D6. The toothbrush and towel each contained material that match with the DNA sample provided by D7.

Summary of the 3^rd set of admitted facts

133.The 3^rd set of admitted facts confirm that Dr. Tao of the Government Laboratories had conducted fiber matching exercise between D7’s clothing and fiber sample taken from MY217. D7’s clothing sample were taken from a hooded jacket, a shirt, a t-shirt and a pair of jeans. Fiber sample from MY217 were lifted from the driver seat, front left and middle seat, middle row right seat, rear row left and right seat and various different seats. Results are inconclusive and it is not possible to prove that D7’s clothing had had contact with the seats in MY217.

Findings and Verdict

134.It is for the prosecution to prove beyond reasonable doubt all the elements of the burglary charge against each of the defendants.

135.I find PW1 to PW5 all honest and reliable witness in relation to the evidence about what they saw when on surveillance duty on the night of 5 December and early hours of 6 December 2013. I find that their identification of each of the defendants involved in the burglary of Brand Off Tokyo correct and the 5 men who were seen to enter the glass door entrance of Brand Off Tokyo between 5:34am and 5:37am were D1 to D5 and the same 5 defendants then made their escape out of the glass door entrance. I find that the 5 defendants were then immediately arrested and the 5 people arrested by the Police officers were in fact the 5 men who made their escape at 5:39am and they were D1 to D5.

136.I find that what D1 and D5 did included prying open the glass door of the Brand Off Tokyo store and entering as trespassers into the store. I find that the only irresistible inference is that they had entered without the permission of the store owner and were trespassers. It was 5 something in the morning and the entrance to the shop was close, locked and not opened for business. I find that the only irresistible inference from D1 to D5’s  action was that they entered with the intent to steal from the store. This of course is supported by the admitted facts where D6 and D7 admitted as facts that D1 to D5 illegally entered the glass door of Brand Off Tokyo store with the intention to steal therein.

137.There is no evidence to suggest that either D6 or D7 knew that D1 to D3 were two-way permit holders. There is also no evidence to suggest that either D6 or D7 knew that D4 and D5 had entered and remained in Hong Kong illegally.

138.There is no evidence to prove who the individual was that actually used the respective Octopus cards when they were being used to enter and exit the various MTR station and the evidence cannot be used to prove the movements of the defendants, including D6 and D7.

Findings and Verdict in relation to D6

139.The first contact between D6 and one of the burglars was on 20^th November 2013, when D6 was seen to hand over a telephone SIM card and a $500 note to D4 inside an eatery. I find that the action of D4 receiving the SIM card, inserting it into the mobile phone he was holding, pressing some buttons and then D6 picking up his own phone just to have a look are facts that point to only one irresistible inference. The inference to be drawn, and I do so draw, is that D6 had provided D4 with a SIM card for D4’s use and D4 was testing it by calling D6’s mobile phone. There is however no evidence to suggest what the numbers of D4 and D6’s mobile phones were at that time.

140.17 hours after D6 handed over the SIM card and the $500 note to D4, the two of them were seen coming together from an eatery and then went to a park to talk, paying attention to property advertisements displayed by the estate agents while walking along different streets.

141.About 2 hours 15 minutes later, D4 went into one of the estate agency while D6 waited nearby. It took D4 only 15 minutes and then he came back out and met up with D6. Together they walked to the sitting-out area and met up with D7. The 3 of them then walked to a restaurant to have meal together. They left the restaurant together and walked together for a while. D6 and D7 then stood on the street and talked while D4 went back into Wah Kee. The admitted facts are silent on when D4 came out.

142.There is no direct evidence what D4 was doing inside Wah Kee Estate Agency in the 15 minute period and after he had eaten with D6 and D7, but given that it is admitted fact (1^st set) that in the afternoon of 21^st November D4 falsely claimed he was Mr. Wong and entered into the provisional tenancy agreement for the 1A premises at Wah Kee, given that D6 was seen walking together with D4 just 2 hours earlier in the area looking at estate agency displayed advertisements, given that D4, D6 and D7 then ate together before D4 went back into Wah Kee while D6 and D7 stood outside the estate agency and talked, I find that the only irresistible inference is that D6 and D7 knew D4 was looking for a place to rent.

143.On the following day, D4 and D6 met up at the same sitting-out area and talked for about 1 hour 20 minutes before they walked back to Wah Kee Estate Agent where D4 entered the store while D6 walked away. Again, there is no direct evidence what D4 was doing in Wah Kee on that occasion, but it is admitted fact that the formal tenancy agreement for the 1A premises was signed on that day. I find that coupled with the fact that D6 had accompanied D4 looking at estate agent advertisements and had seen D4 entered Wah Kee twice the previous day, the only irresistible inference is that D6 must have known on 22^nd November that D4 was going into Wah Kee to sign the formal tenancy agreement for the rental of a premises.

144.It is admitted fact that D4 rented the 1A, no.135 Tai Nam Street premises on 21 November. It is admitted fact that this premises it was the same place that D1 and D5 had resided prior to the burglary. It is admitted fact that a water glass with D6’s DNA material and a towel and toothbrush with D7’s DNA material were found inside the premises on 6^th December. It is admitted fact that D6 was seen to enter the building where the premises was located twice on 25^th November, 4 times on 27^th November, 2 times on 28^th November, twice on 30^th November, three times on 4^th December. On various occasions when D6 entered the premises, he was seen to have brought along something. It does not however say in the admitted facts whether he had brought them back out or not.

145.Nevertheless, I find that taking these facts together, the only irresistible inference that can be drawn is that D6 had been inside the premises. There is however no direct evidence to prove what he was doing inside and who else were inside the premises when D6 visited.

The night of the burglary

146.About 24 hours after D6 was seen leaving the premises building on 5^th December, D6 was again seen to come out from the premises building at 2:52am on 6^th December. There is no evidence to say when D6 entered the premises building.

147.D6 stood on the street and kept looking up at the premises building. After a few minutes D1 and D2 came out and walked towards a white private vehicle and talked with the driver who later drove the white vehicle away. D2 went back into the premises building while D1 and D6 talked for a while and then got on to taxi PS8790 together and left the area.

148.A few minutes later at 3:06am the taxi showed up at Star Ferry pier, near the place where the burglary took place and D6 got out of the taxi with one of the burglars. There is no direct evidence to prove whether D6 knew why D1 was going to the area and why D6 went together with D1 on the taxi. The only irresistible inference up to this point is that D6 knew D1 and D2 and was aware of the existence of the white private vehicle.

149.About 1 hour 40 minutes after D6 had gotten out of the taxi with D1, D6 got back onto another taxi at Canton Road. There is no evidence as to what D6 had been doing in that 1 hour 40 minutes except that he was in the area. D6 got out of this second taxi 3 minutes later at 4:49am on Nathan Road and then wandered along Austin Road and Canton Road area until his arrest. D6 was seen to have talked on his mobile phone for a few times.

150.Meanwhile, before D6 got on to the second taxi at Canton Road, D2 and D5 came out from the premises building and walked to Boundary Street where they boarded taxi DC1828. The taxi went back to outside the premises building and picked up D3 and D4. D2, 3, 4 and 5 went together in that taxi to Star Ferry pier, the same place where D1 and D6 went earlier.

151.As around 4:45am, D6 was walking towards Canton road according to PW2 and by 4:46am PW4 saw D6’s second taxi turning into Nathan Road and D6 got out of the taxi at 4:49am.

152.While D6 was in his second taxi, D2, 3, 4, 5’s taxi DC1828 arrived at Star Ferry pier.

153.During the time after D6 had gotten out of the taxi with D1, i.e. from 3:06am onwards, according to the phone records, D6 had communicated (incoming and outgoing) with D2’s phone number (9697 3157) 10 times; with D4’s phone number (6736 4305) 4 times; and with the phone number printed on the SIM card case found on D7 (5419 0595) 8 times.

154.D6 started to have contact with D4 latest on 20 November, he knew about D4’s renting of the Tai Nam Street premises and had himself been up there for at least a few times, apparently bringing along supplies to D1 and D5 who were residing there. When the time came, he came downstairs to look around and then waited for D1 and D2 to come down on to the street, waited for them to talk to the driver in the white vehicle and then got into a taxi with D1 and went together with him to the vicinity of the burglary. D6 then remained in the area for about one odd hour and left at around the time D2, 3, 4 and 5 arrived in the same area. D6 however did not go too far. He took a taxi and got out after 3 minutes and then wandered around, in the mean time maintaining phone contact with D2, D4 and D7’s phone numbers (from 4:47:44 onwards to 5:31:40). Just around 3 minutes after D6 received a call from D4’s phone number which lasted 60 seconds, D1, 2, 3, 4 and 5 started to enter the glass door and proceeded with the burglary.

155.I find that D6’s handing over of the SIM card and $500 to D4, his accompanying D4 looking for property to rent, his talking with D4 in the sitting-out area, his visiting the Tai Nam Street 1A premises, his initial presence in Star Ferry pier together with D1, his wandering in the Austin Road Canton Road area while the burglars were themselves wandering around in the Star Ferry pier area and his phone contacts with D2 and D4 during that period could not have been sheer coincidence. The only irresistible evidence from all the circumstantial evidence must be that D6 assisted D1 to D5 in their burglary.

156.I find that based on the admitted facts, in particular the facts referred to above, and the evidence of PW1 to PW4, the only irresistible evidence in relation to D6 is that D6 was in the burglary together with D1 to D5.

157.I find that the prosecution has proved beyond reasonable doubt that D6 was in it together with D1 to D5 in the burglary of Brand Off Tokyo on 6^th December 2013 and I convict D6 of charge 1 accordingly.

Findings and Verdict in relation to D7

158.It is for the prosecution to prove its case against D7. They have to prove that the evidence available against D7 proves beyond reasonable doubt that D7 was in it together with D1 to D5 when they committed the burglary.

159.I find that I can give full weight to D7’s confession. I find that D7 was in fact acting as a look out for D1 to D5 on the night of the burglary. I find that when D7 said he was just sitting in the car “watching water （睇水）”, D7 meant that at the time (5:39am on 6^th December 2013) D7 was sitting inside MY217 keeping a lookout. I find that when he said he was keeping a lookout, D7 was referring to looking out for D1 to D5 in their burglary that night. I also find that based on what D7 said in reply to PW5 telling him the reason for his arrest, D7 by implication admitted that he was sitting inside MY217 when it collided with the unmarked Police vehicle.

160.I find that there is in fact insufficient evidence to prove that D7 was the driver of MY217 at the time of the collision and getting away. Neither the closed circuit television footage capturing the driver leaving MY217 at the carpark, nor the eye witness who saw the driver took off the jacket and left the car provides enough evidence to prove that the person was D7.

161.I proceed to give full weight to D7’s claim in his confession that he was not the driver and that he did not know the driver. I however do not give any weight to his claim that he did not know so much about other things, the reason being that it is an ambiguous statement and is open to interpretation.

162.The fact that D7 had agreed to take part as a lookout in the burglary is corroborated  by circumstantial evidence.

163.D7 was seen with D6 and D4 on 21^st November when he met up with D4 and D6 at the sitting-out area at Arran Street. The 3 of them then walked to Ling Kee Restaurant to have meal together. They then left the restaurant together and walked together towards Prince Edward Road West and had paused on the street to talk. D7 and D6 continued to talk while waiting outside Wah Kee Estate Agent for D4.

164.One week later on 28^th November, D7 was seen together with D6 to enter Tai Nam Street rented premises. D7 brought along something. 2 nights later on 30^th November, D7 again entered the building with D6. 4 days later on 4^th December, D7 entered the building together with D6 at 1:08am and left about 1 hour later. Then at 11:23pm that same night, D7, this time together with D1, D2 and D6 walked into the building again. D7 left about 1 hour later, at 12:37am on 5^th December.

165.Although there is no direct evidence that it was D7 who was using the mobile number (5419 0595) at the material time when the number was used to contact D6’s mobile phone between 2:07 and 5:19am on 6^th December, the fact that the card holding case of that number was found to be in D7’s possession when he was arrested is cogent circumstantial evidence to link D7 to whoever was using that number.

166.The D7 number was being used to communicate with D6’s number at 2:07am, 2:51am, 2:54am, 2:55am, 3:54am, 3:57am, 4:01am, 4:32am, 4:35am, 4:47am, 5:07am and 5:19am. I find that given the frequency and timing of the calls, the person who was using the D7 number must be communicating with D6 about the burglary. 2:52am was the time that D6 was seen to have come out from the Tai Nam Street premises building and the movement of D1 began.

167.D6 got on to the second taxi FK3810 at around 4:45am and got off at 4:49am and there was phone contact between his and the D7 number at 4:47am. D6 was then seen wandering around the Austin Road Canton Road area for about 15 odd minutes until his arrest at 5:40am and occasionally using his mobile phone. There was communication between D6’s phone and the D7 number at 5:07am and 5:19am, which was just about 15 minutes before D1 to D5 started to enter the Brand Off Tokyo glass door entrance.

168.Based on the fact that D6 was holding the phone with the number that was used to communicate with D7 that night, I find that it is an irresistible inference that D6 was in fact the person who was using that particular number (5934 3535) from 2:07am to 5:31am on 6^th December.

169.The next time D7 showed up was at Lo Wu Station when he was arrested on the morning of the burglary.

170.Based on the fact that a towel and toothbrush seized from inside the Tai Nam Street premises were found to have DNA samples belonging to D7 and the fact that D7 had been seen on multiple occasions entering the premises building, I find that D7 had in fact been inside the premises.

171.I find that based on D7’s confession and the circumstantial evidence, D7 did in fact act as a lookout on the night of the burglary for D1 to D5 and was therefore in it together with D1 to D5 in their commission of the burglary of Brand Off Tokyo on 6^th December. I convict D7 of charge 1 accordingly.