HKSAR v. NAWAZ SARFRAZ AND ANOTHER

DCCC 189/2019

[2020] HKDC 581

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 189 OF 2019

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REASONS FOR VERDICT

1.  The defendants plead not guilty to one charge of conspiracy to wound with intent to do grievous bodily harm, contrary to section 17 (a) of the Offences against the Person Ordinance[1] and section 159A and 159C of the Crimes Ordinance (charge 2)[2].

2.  The particulars of the offence are:

“Leung Fung Yiu, Pong Ching Lung, Nawaz Sarfraz and Ahmad Faraz, on the 26th day of October, 2018, at “Triangle Motors Limited”, Lot 744RP, Tun Yu Road, San Tin, Lok Ma Chau, New Territories, in Hong Kong, conspired together with other persons unknown to unlawfully and maliciously wound X with intent to do him grievous bodily harm.”

3.  Leung Fung Yiu (D1) and Pong Ching Lung (D2) pleaded guilty to the charge on 9 October 2019[3]. I direct myself the fact that D1 and D2 have pleaded guilty to the charge has no bearing on the case of D3 and D4.  The prosecution has to prove the charge against D3 and D4[4].

Prosecution case

4.  In summary the prosecution case is that on 26 October 2018 the police received a 999 call reporting suspicious persons on a private car bearing registration mark MG 451.  Shortly afterwards the police spotted MG 451 which they followed to Triangle Motors Limited (“Triangle Motors”) on Tun Yu Road in Lok Ma Chau where MG 451 stopped.  D1 and D2 were sat in the front and D3 and D4 were sat in the back.  D1, D2, D3 and D4 were intercepted when they alighted from the car.

5.  The number plates MG 451 were false.  The real registration mark of the car was UM 2100. 

6.  The police found on the car various items including two knives; three hammers; a can containing suspected petrol; a walkie-talkie; gloves; caps, balaclavas and facemasks.  A third knife was also found outside the car near to the rear passenger door behind the driver. The prosecution also relies on DNA found on facemasks and a cap inside the car.

7.  D2’s mobile phone was seized.  The police found on the mobile phone photographs of a male together with a photograph of a location with the word “target”.  The prosecution case is that the male on the photographs is X and was the ‘target” of the conspiracy.  The prosecution also relies on the telephone records of the mobile phones of D1, D2 and D4.

8.  X was not called as a witness.  The prosecution relies on the circumstantial evidence including that the defendants were in a stolen car; the implements found in the car; the messages found on D2’s mobile phone; and communication between D1, D2, D4 and other persons unknown between 24 October 2018 and 26 October 2018 and submit that the only inference to draw is that all the defendants conspired together and with other persons unknown to wound X with intent to do him grievous bodily harm[5]. 

Defence case

9.  In summary the defence case is that D3 and D4 having stayed in a massage parlour overnight in Yuen Long were on their way to D3’s home in Tung Chung when by chance they met D1 and D2 in Yau Oi.  D1 and D2 were standing next to MG 451 which was parked on the road.   D1 and D2 invited D3 and D4 to join them for breakfast in Sheung Shui.  D3 and D4 agreed. 

10.  D1, D2, D3 and D4 were on the way to Sheung Shui when they stopped at Triangle Motors to change the tyres at which time the police intercepted them.  D3 and D4 did not know knives and hammers were on board MG 451 and did not conspire with D1, D2 and other persons unknown to unlawfully and maliciously wound X with intent to do X grievous bodily harm. 

Fair trial

11.  On day five of the trial Mr Pannu stated that it appeared the court was coaching the prosecution whereby he was beginning to feel slightly uncomfortable about the fairness of the proceedings and that D3 had been grumbling to him[6].  

12.  I informed Mr Pannu that a judge was not to sit back where there maybe lacunas in the evidence, grit his teeth and say nothing.   This was taken from the judgment of Simon Brown L.J. in R v Saville[7]:

"Litigation, as the Lord Chief Justice pointed out during the course of argument, is not a game, although too many believe it to be. If the presiding judge perceives the risk of a case going off on a wholly wrong basis, whether because of some legal technicality which has been overlooked, or because of some lacuna in the evidence, it is not incumbent on him to grit his teeth, remain silent and watch justice miscarry - for it is no less a miscarriage of justice when an accused person escapes conviction through inefficiency or carelessness on the part of the Crown, than when he is convicted as a result of a comparable error on the part of the defence. Rather it is the duty of the judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that that goal is achieved."

13.  This passage has been quoted repeatedly in cases involving interventions by the court most recently in HKSAR v. Lai Oi Yan[8].

14.  When asked if he had any application to make Mr Pannu said no.

15.  I was satisfied where the court was given an opening setting out the prosecution case that the court was entitled to ask the prosecution how the evidence was to be adduced.  I was satisfied the interventions of the court were made to ensure the fairness of the proceedings[9].

Evidence

16.  The prosecution called eleven witnesses on the schedule of prosecution witnesses attached to the prosecution opening: Wong Kwong Hung (PW1) who made the 999 call; Shek Tsz Kin (PW2) the registered owner of UM 2100; PC 8626 (PW3) who was part of the team which spotted MG 451; PC 14886 (PW4) who seized D2’s mobile phone; PC 3755 (PW5)[10] who searched MG 451; PC 51205 (PW6), PC 25656 (PW7) and WPC 11504 (PW8) who guarded MG 451[11]; WDPC 4171 (PW9) who seized the exhibits and examined D2’s mobile phone[12]; DSPC 33568 (PW10)[13] who locked the exhibits for safekeeping and DSPC 46539 (PW11)[14] who obtained written consent from D2 to examine his mobile phone. No other witnesses were required by Mr Pannu or Mr Sherry to be tendered for cross-examination. 

17.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[15], including that MG 451 was not registered and that the true registration mark of the car was UM 2100[16]; the arrest of D1, D2, D3 and D4[17]; photographs[18]; telephone records[19] and DNA examination[20].  I will refer to the admitted facts as I review the evidence. 

18.  D3 elected not to give evidence or call any witnesses.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt[21]. 

19.  D4 elected to give evidence.  No witnesses were called on his behalf. 

20.  Admitted in evidence is that D4 has a clear criminal record[22].   I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[23].

21.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of each defendant before I can convict, the case of each defendant to be considered separately. On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

22.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

Prosecution evidence

The 999 call

23.  Mr Wong Kwong Hung (PW1) testified that at about 9:30 a.m. on 26 October 2018 he left his home in Chau Tau Tsuen in Yuen Long to go out.  When Mr Wong passed by where he parked his car he saw a dark coloured private car stopped next to his car.  Mr Wong, who had lived in the village for twenty years, had never seen this car before and suspected they were going to steal his car or burgle somewhere.

24.  In cross-examination Mr Wong said he could not be sure if the car belonged to a villager he did not know but was sure this was not the car which was supposed to be parked in that space[24].

25.  Mr Wong walked past the car and noticed four persons inside.  The driver was a Chinese male and was wearing a face mask.  The other three were South Asian males, one in the front passenger seat and two in the back.  Mr Wong could not see their faces or the clothing they were wearing.

26.  After walking for about fifteen meters past the car Mr Wong looked back at the car and then called the police telling them about the car and that he did not know whether they wanted to steal anything.  Mr Wong told the police the registration number of the car but due to the lapse of time could no longer remember the number[25].

27.  Mr Wong stood there for a few minutes but as he was in a hurry he left before the police arrived.  Mr Wong did not see anyone get on or off the car.  In cross-examination Mr Wong said he left before the car moved away[26].

The interception

28.  At around 9:26 a.m. on 26 October 2018 PC 8626 (PW3) was on uniform patrol in police van EU 88 together with other officers when he received a message on the consul to handle a cases of persons suspicious.  The consul asked the police officers to go to the open space carpark outside Chau Tau Tsuen and pay attention to whether vehicle MG 451 was in the vicinity.

29.  EU 88 arrived at the open space at 9:34 a.m.  PC 8626 alighted but was unable to see MG 451.   When PC 8626 got back on board EU 88 drove in the vicinity looking for MG 451.  At 9:47 a.m., on reaching Chau Tau Road West, PC 8626 saw MG 451 stopped in a layby.

30.  As EU 88 approached the layby MG 451 pulled out of the layby and drove towards Lok Ma Chau Road.  EU 88 followed behind.  PC 8626 used his radio to contact other team members.  EU 88 followed MG 451 all the way to Triangle Motors on Tun Yu Road during which time PC 8626 never lost sight of MG 451.  

31.  MG 451 turned left into Triangle Motors whereas EU 88 stopped at the entrance.  In cross-examination PC 8626 said he believed from the time he first saw MG 451 to the time MG 451 turned into Triangle Motors was about five minutes[27].

32.  PC 8626 alighted from EU 88 together with Sgt 34142 and WDPC 11994 and went forward.  PC 8626 saw MG 451 drive to the very end of Triangle Motors and make a U-turn, stop and park.  Four males alighted, two Chines males from the front and two Pakistani males from the back. PC 8626 identified these two males as D3 and D4.

33.  PC 8626 saw the four males walk to a grass patch at the rear of MG 451 and felt that they were trying to escape.  In cross-examination PC 8626 agreed he did not mention in his witness statement that he felt the four males were trying to escape. 

34.  PC 8626 told the four males, probably in English and Chinese, to stop and indicated to them to walk to him.  The males immediately walked to PC 8626.

35.  At this time police vehicle EU 87 arrived and PC 14880, PC 12784 and PC 3755 alighted and ran over to assist PC 8626 and control the four males.  At 9:55 PC 14886 (PW4) arrived together with colleagues on board EU 91.

The search

36.  PC 3755 (PW5) testified that at 10:05 a.m. he started to search MG 451.  PC 3755 only searched MG 451 and did not seize any exhibits.  The exhibits were seized at 18:20 by WDPC 4171 (PW9).

37.  PC 3755 was referred to the photographs, exhibit P2 (1-62).  Admitted in evidence is that at 1605 hours on 26 October 2018 SPC 52037 took sixty-two photographs of the scene[28]. WDPC 4171 testified that she directed SPC 52037 which photographs to take.

38.  PC 3755 testified that PC 14886 escorted the driver to witness the search and other colleagues including PC 8626 escorted the other three males to the front of MG 451 so they too could witness the search.

39.  Arrangements were first made for the vehicle parked next to MG 451 to be driven away.  When the vehicle was driven away PC 3755 immediately saw a knife and a facemask on the ground in the position shown in photographs 2 and 3.  PC 3755 was only able to say he believed the exhibits shown to him were the knife and the face mask[29].

40.  PC 3755 cordoned off the area where the knife and the facemask were found to ensure that no one stepped on the exhibits or tampered with them[30].

41.  PC 3755 then systematically searched MG 451 starting with the driver’s seat.  PC 3755 discovered a torch (exhibit P12) inside the driver’s door bin in the position shown in photographs 7 and 8[31]; a bottle of water (exhibit P13) next to the driver’s seat as shown in photograph 7[32]; a pair of gloves (exhibit P14) next to the handbrake in the position shown in photograph 16[33] and a facemask (exhibit P15) and a box of Marlboro cigarettes (exhibit P16) [34] in a compartment between the driver’s seat and the front passenger seat as shown in photograph 12.

42.  PC 3755 next searched the front passenger seat.  PC 3755 found a hammer (exhibit P17)and a balaclava (exhibit P18) inside the passenger door bin in the position shown in photographs 13 and 14[35]; a black/grey jacket (exhibit P19) and a black cap (exhibit P20) on the passenger seat in the position shown in photograph 15.

43.  Inside the glove compartment PC 3755 found a walkie-talkie (exhibit P21), three facemasks (exhibit P22), a pair of pliers (exhibit P23) and a bottle of Oolong tea (exhibit P24).  Photograph 17 shows the facemasks and the walkie-talkie[36].

44.  PC 3755 discovered a knife (exhibit P25) underneath the floor mat in front of the passenger seat in the position shown in photographs 17 & 18[37].  PC 3755 explained that the mat was rolled down and only the handle of the knifecould be seen as shown in photograph 17 and not rolled up as shown in photograph 18.  In cross-examination by Mr Pannu PC 3755 said that he rolled up the mat to see the knife. 

45.  By moving the front passenger seat back PC 3755 discovered a jacket.  PC 3755 could only recall seeing one jacket.  No photograph shows the jacket and PC 3755 was unable to give a description of the jacket.   WDPC 4171 said she found two jackets underneath the front passenger seat (exhibits P49 and P50). 

46.  PC 3755 found a facemask (exhibit P26) in the pocket on the back of the front passenger seat in the position shown in photographs 10 and 11. 

47.  PC 3755 then searched the rear passenger seat area where he found on the floor behind the front passenger seat a silver tin (exhibit P27) containing suspected petrol and a towel (exhibit P28) in the positions shown in photographs 10, 11 and 12[38].

48.  On the floor in the middle PC 3755 found a hammer (exhibit P29) in the position shown in photographs 10, 11 and 12[39].

49.  On the rear passenger seat PC 3755 found a jacket (exhibit P30) and four caps (exhibits P31-P34).  PC 3755 explained the jacket and caps were not spread out as shown in photographs 10 and 11 and that he could not now remember whether they were laid out one on top of the other or how they were positioned on the seat. 

50.  On the floor behind the driver’s seat PC 3755 found a bag, brand name ‘Tommy’ (exhibit P35) with the zip open as shown in photographs 10 and 11[40].  PC 3755 found a hammer (exhibit P36) and two facemasks (exhibit P37) inside the bag[41].

51.  PC 3755 next searched the boot of the car where he found four jackets (exhibits P38-P41)[42]; a black bag (exhibit P42) inside which was a knife (exhibit P43), a pair of gloves (exhibit P44), two balaclavas (exhibit P45) and one towel (exhibit P46) in the positions and condition shown in photographs 19 and 20[43].

52.  PC 3755 explained that he left all the items in their original position as best he could and then closed the doors of the car to ensure the items were not tampered with.

53.  PC 3755 finished the search at 10:20 a.m.  Admitted in evidence is that at 1020 hours on 26 October 2018 all four defendants were arrested for possession of an offensive weapon[44].

54.  At 12:10 p.m. PC 3755 handed over the scene to PC 25602 and PC 51205.  PC 51205 (PW6) testified he guarded MG 451 between 12:10 and 12:45 during which time no one tampered with the exhibits.  

55.  At 12:45 p.m. the guarding of MG 451 was taken over by PC 5477 and PC 25656.   PC 25656 (PW7) testified he guarded MG 451 between 12:45 and 15:50 during which time no one tampered with the exhibits.  

56.  At 15:50 the guarding of MG 451 was taken over by WPC 11504 and PC 48464.  WPC 11504 (PW8) testified she guarded MG 451 between 15:50 and 17:45 during which time no one tampered with the exhibits.  

57.  At 17:45 WPC 11504 handed over the scene to the District Crime Squad, Border District.

WDPC 4171

58.  WDPC 4171 (PW9), who was attached to District Crime Squad, Border District, arrived at the scene at 16:00 and was tasked to deal with the exhibits.  As noted earlier WDPC 4171 seized all the exhibits at 18:20[45].   

59.  WDPC 4171 identified all the exhibits in court and said they were in the positions shown in the photographs.   

60.  WDPC 4171 testified that from the time she arrived until she left the scene at 6 something she was all along dealing with the exhibits and that during this time nobody tampered with the exhibits. 

61.  Before leaving the scene WDPC 4171 individually wrapped the exhibits and then took them to her base.  At 02:30 hours the next morning WDPC 4171 handed over the exhibits to DSPC 33568.  DSPC 33568 (PW10) testified that he locked the exhibits in a metal cabinet.

Ownership of the car

62.  PC 3755 found the vehicle licence displayed on the windscreen of MG 451 was for registration number UM 2100 and not MG 451(exhibit P47) [46].  Admitted in evidence is that MG 451 was not registered and that the true registration mark of the car was UM 2100[47].

63.  WDPC 4171 testified that she also seized two car keys (exhibit P48) from the ignition as shown in photograph 9[48].

64.  Admitted in evidence is a certificate certifying that on 26 October 2018 Shek Tsz Kin, Jimmy was the registered owner of UM 2100 and that the vehicle licence had expired on 4 September 2017[49].

65.  Mr Shek Tsz Kin (PW2) testified that on 15 August 2017 he was arrested for trafficking in dangerous drugs, remanded in custody and sentenced on 20 April 2018 to 56 months’ imprisonment. 

66.  Prior to his arrest Mr Shek said he owned a private car for several months.  Mr Shek could not however remember the registration number of his car.  Mr Shek said the car was black and that it seemed to be a Corolla. 

67.  Mr Shek said that he last saw his car on the day of his arrest, the car being next to him when he was arrested and at which time the number plates were on the car and the vehicle licence displayed on the windscreen. 

68.  Mr Shek was not sure if he had left any personal items in the car.  Mr Shek did not leave any knives in his car and did not place in his car any of the items shown in photographs 18, 22-23, 25-44, 46-49, 53, 60 and 62 (exhibit P2).  

69.  After his arrest Mr Shek gave the car to a friend called Ming Chai.  Mr Shek did not know where Ming Chai parked the car.  In cross-examination Mr Shek said he had no personal belongings in the car and that he used the car for conveying drugs[50]. 

70.  Mr Shek did not know persons by the names of D1, D2, D3 and D4.  In cross-examination Mr Shek said he did not know D3 or D4[51]. 

D2’s mobile phone

71.  WDPC 4171 (PW9) testified that she examined D2’s mobile phone. 

72.  PC 14886 (PW4), who arrested D2[52], testified that at 11:56 a.m. on 26 October 2018 he seized from D2 a white Samsung mobile phone (exhibit P9) which he sealed in a Tamper Evident Property Envelope (exhibit P9C)[53]. PC 14886 was recalled at the end of the prosecution case to identify the signature of D2 on the Tamper Evident Property Envelope, exhibit P9C.   

73.  Between 23:18 on 26 October 2018 and 00:17 hours on 27 October 2018 DSPC 46539 (PW11) conducted a video interview with D2 in which he believes he referred to D2’s mobile phone and the content of the phone.  DSPC 46539 testified that he obtained written consent from D2 to examine his mobile phone.  DSPC 46539 produced the written consent (exhibit P52) which he said he explained to D2 and which D2 understood and signed.     

74.  WDPC 4171 was not present when D2 consented to his mobile phone being examined and only later came into possession of the written consent.  In the evening WDPC 4171 checked the content of the mobile phone. 

75.  WDPC 4171 found a WeChat conversation between D2 and a person called ‘AKS’ between 4:51 p.m. on 10 October 2018 and 7:38 a.m. on 26 October 2018.  The conversation included photographs WDPC 4171 suspected were connected with the case. 

76.  On 4 December 2018 WDPC 4171 directed SPC 58997 to take photographs of the mobile phone and the WeChat conversation.  Admitted in evidence is that at 1640 hours on 4 December 2018 SPC 58997 took fourteen photographs (photographs 63-76, exhibit P2)[54]. WDPC 4171 testified that photographs 67-70 showed all the WeChat conversation between these times. 

77.  The conversation included two photographsof a male (photograph 67 and close up photographs 71 & 72) and a photograph of a residence (photograph 68, close up photograph 73) with the words hand written in Chinese (certified translation exhibit P51):

“Target ground

Black Grey Volks(wagen) JEEF JJ 3382”

78.  The photographs were sent on 10 October 2018.  In cross-examination WDPC 4171 confirmed the photographs were sent by D2 to ‘AKS’[55].

79.  WDPC 4171 investigated the identity of ‘AKS’ by contacting WeChat who replied the telephone number was 6488 7378[56].

Telephone records

80.  Admitted in evidence are the telephone records for the period 24 October 2018 to 26 October 2018 of phone number 6488 7378, D1’s phone number 5617 9186, D2’s phone number 5267 1614, phone number 5680 9314 and D4’s phone number 5616 1542[57].  6488 7378 and 5680 9314 were prepaid sim cards with the customer name unknown[58].   

Identification of X

81.  WDPC 4171 also investigated who was the registered owner of JJ 3382 by checking with the police system which was linked to the Transport Department[59]. 

82.  On 14 November 2018, with the information obtained from the police system, WDPC 4171 interviewed the registered owner, who was a male.  WDPC 4171 checked that the identity of the male matched the particulars of the registered owner. 

83.  WDPC 4171 said that when she interviewed the male the photographs of the male seen in D2’s mobile phone (photograph 67 and close up photographs 71-72) were fresh in her memory.  WDPC 4171 said the male in the two photographs was the same male she interviewed.

Forensic examination

84.  Admitted in evidence is that Dr Lin Sze Wah examined caps and facemasks seized and concluded that the DNA found on the surfaces of a facemask with police reference 40 (GPC 42875)could have originated from D3[60]; the DNA found on the surfaces of a facemask with police reference 42 (GPC 42877)could have originated from D4 [61] and the DNA found on the inside surfaces and the flap of a cap with police reference 36 (GPC 42871)could have originated from both D2 and D3[62].

Defence evidence

85.  D4, aged 27, testified that he was single and lived with his parents.  In cross-examination D4 agreed that he lived in Tin Shui Wai[63]

86.  In October 2018 D4 worked full time as a construction worker in the container port and part-time at the airport handling cargo.  D4 earned around $18,000 - $25,000 per month.  D4 would keep $5,000 for his expenses and give the rest to his family.

87.  D4 had known D3 for more than ten years having first met D3 when working at the airport.   D3 and D4 had a good relationship both visiting each other’s homes.

25 October 2018

88.  D4 returned home between 9 and 10 p.m.  Between 11 p.m. and 12 midnight D3 telephoned D4.  D3 and D4 had no work the next day therefore they decided to go to the Silver Sauna massage parlour in Yuen Long.

26 October 2018

89.  D4 met D3 at the massage parlour between 12 and 1 a.m and stayed until around 6 – 7 a.m.  After smoking a cigarette D3 and D4 then took a taxi to the Tuen Mun ferry pier with the intention of taking the ferry to Tung Chung.  In cross-examination D4 confirmed that D3 lived in Tung Chung[64].

90.  On the way D3 said that he needed to withdraw some money from an ATM therefore the taxi driver was told to go to Yau Oi instead of the ferry pier.  After D3 withdrew money from the ATM D3 and D4 were on their way to the ferry pier when suddenly D3 met D1 and D2 who were just standing on the road.

91.  In answer to the court D4 said that after D3 withdrew the money from the ATM they did not take a taxi to the ferry pier and instead were going to take the LRT and were walking to the LRT stop when they met D1 and D2[65].

92.  D4 said there was no plan to meet D1 and D2.  D4 said he knew D1 and D2 through D3 and that he had met them once or twice, the last time being about one and a half years before he was arrested.

93.  After D3 talked to D1 and D2, D3 said they would be going to have breakfast with D1 and D2 in Sheung Shui.  All four of them got in a black car, which D4 identified as the car shown in photographs 2, 3 and 4.

94.  In cross-examination by Ms Ma D4 said that when he saw D1 and D2 they were standing next to the car which was parked on the road.

95.  In cross-examination by Mr Pannu D4 said that he spoke and understood a little Cantonese.

96.  D4 sat behind the driver’s seat.  D4 described the interior of the car as very dirty with things scattered here and there.  The caps shown in photograph 10 were not on the backseat but were lying in the boot.  D4 saw the blue bag shown in photograph 10 but not the hammer or the knives shown in photographs 18, 23 and 29.

97.  In cross-examination D4 said the blue bag was in the middle on the floor and that the zip was not open and that he did not see the tin shown in photograph 10[66].

98.  On the way to Sheung Shui the car suddenly went to a village.  D3 told D4 that D2 had to meet someone in the village.  After waiting two to three minutes the car left the village.  D2 then said the tyres needed changing because the alignment was wrong.  D1 then drove to a showroom close to the village to change the tyres. After D1 told the worker in the showroom they needed to change the tyres the worker said to park the car.

99.  Two to three minutes after parking the car the police suddenly came and they were arrested.

Discussion

100.  I have carefully considered all the evidence and the submissions of Ms Ma, Mr Pannu and Mr Sherry.

101.  In considering the evidence due allowance is given to the prosecution witnesses and D4 who testified about what happened on the 26 October 2018, over eighteen months ago. 

Conspiracy

102.  Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means with the intention of carrying it out.  A party may join a conspiracy at any stage provided the conspiracy is a single, ongoing one. 

103.  The agreement may be proved by direct evidence or by proving circumstances from which the court may presume it.  Proof of the existence of a conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties accused.

104.  Both Mr Pannu and Mr Sherry submit that the only material time relevant to proving D3 and D4 were party to an agreement to unlawfully and maliciously wound X with intent to do him grievous bodily harm is when the defendants were at Triangle Motors and that all evidence prior to this is irrelevant[67]. 

105.  The particulars of the offence are:

“Leung Fung Yiu, Pong Ching Lung, Nawaz Sarfraz and Ahmad Faraz, on the 26th day of October, 2018, at “Triangle Motors Limited”, Lot 744RP, Tun Yu Road, San Tin, Lok Ma Chau, New Territories, in Hong Kong, conspired together with other persons unknown to unlawfully and maliciously wound X with intent to do him grievous bodily harm.”

106.  Conspiracy is a continuous offence.  The offence begins when any two or more parties enter into an unlawful agreement and continues until it comes to an end.   I am satisfied no prejudice is caused to the defence by stating the conspiracy to be at the place of interception. The prosecution case was clear that the presence of D3 and D4 in the car was pursuant to an agreement to unlawfully and maliciously wound X with intent to do him grievous bodily harm. 

Conspiracy between D1 and D2

107.  Although D1 and D2 have pleaded guilty to the charge I will first consider whether the prosecution have in this trial produced evidence to prove the conspiracy between D1 and D2.

The items found by the police on a search of the car

108.  Among the items found by the police in MG 451 were two knives, three hammers; one tin of suspected petrol; three balaclavas, two pairs of gloves, seven facemasks, five caps and a walkie-talkie[68]. One of the hammers was found inside the front passenger door bin (photographs 13 and 14) and one of the knives was found under the floor mat in front of the front passenger seat (photographs 17 & 18).  D1 and D2 were sitting in the front of the car.

Stolen vehicle

109.  In the prosecution closing submission Ms Ma refers to MG 451 being a stolen vehicle[69].    No direct evidence has been given that MG 451 was a stolen vehicle.

False number plate

110.  As summarised earlier PC 3755 found the vehicle licence displayed on the windscreen of MG 451 was for registration number UM 2100 and not MG 451 (exhibit P47) [70].  Admitted in evidence is that MG 451 was not registered and that the true registration mark of the car was UM 2100[71].

Registered owner

111.  Admitted in evidence is a certificate certifying that on 26 October 2018 Shek Tsz Kin, Jimmy was the registered owner of UM 2100 and that the vehicle licence had expired on 4 September 2017[72].

112.  The evidence of Mr Shek (PW2) has been summarised earlier[73].  Briefly, on 26 October 2018 Mr Shek was in prison serving a sentence of 56 months’ imprisonment imposed on 20 April 2018 for an offence of trafficking in dangerous drugs committed on 15 August 2017.  After his arrest on 15 August 2017 Mr Shek was remanded in custody.

113.  Prior to his arrest Mr Shek owned a private car but could not remember the registration number.  Mr Shek said that he last saw his car on the day of his arrest, at which time the number plates were on the car and the vehicle licence displayed on the windscreen. 

114.  Mr Shek was not sure if he had left any personal items in the car and said he did not leave any knives in the car and did not place any of the items shown in photographs 18, 22-23, 25-44, 46-49, 53, 60 and 62 (exhibit P2) in the car.   In cross-examination Mr Shek said he used the car for conveying drugs. 

115.  After his arrest Mr Shek gave the car to a friend called Ming Chai.  Mr Shek did not know persons by the names of D1, D2, D3 and D4 and did not know D3 or D4.  Mr Shek did not know where Ming Chai parked the car. 

Credibility of Mr Shek

116.  Mr Pannu submits that Mr Shek, a known drug trafficker, has little to no credibility and that if he is not to be believed then it is likely he was aware of the items inside his car but would wish to distance himself in fear of facing consequences[74].

117.  In cross-examination Mr Pannu referred Mr Shek to his witness statement in which was recorded (twice) that he had last seen the car several days before he was arrested and that he usually left the key inside the car for others to use without locking the car.  Mr Shek said he did not tell the police this and that the police asked him to sign a blank statement[75].

118.  I reject Mr Shek was asked to sign a blank statement.  I do not find this evidence under cross-examination credible.  I therefore proceed with utmost caution in considering the evidence of Mr Shek, in particular that he did not leave any knives in the car and did not place any of the items shown in the photographs in the car.

Ignition lock and keys

119.  As summarised earlier WDPC 4171 testified that she seized two car keys (exhibit P48) from the ignition as shown in photograph 9[76].  In answer to the court WDPC 4171 said that when she saw the ignition it was in the condition shown in photograph 9[77]. Photograph 9 shows that the ignition had been prized.

120.  In cross-examination Mr Shek was shown photographs 9 and 57 and asked if he was using the same keys[78]. Mr Shek said that when the police came to interview him they said the ignition was prized; he did not use the same keys and that he only had one key not two; and that the keys shown in the photographs were not the original car key and were not the keys of his car.

121.  Mr Shek had been in prison since his arrest on 15 August 2017, over one year prior to the arrest of the defendants.  Photograph 9 shows the ignition having been tampered with. 

122.  I accept the evidence of Mr Shek that the keys shown in photograph 9 were not the keys he used; that when he last saw his car the number plates were on the car and that he did not leave any knives in the car and did not place any of the items shown in the photographs in the car.

123.  I am satisfied so I am sure the only inference to draw is that on 26 October 2018 the car was a stolen car.

WeChat conversation found on D2’s mobile phone

124.  The defence objected to the admissibility of messages obtained from D2’s mobile phone on the grounds that the prosecution having not called D2 could not prove consent was given by D2 to examine his mobile phone and that the production of D2’s written consent (exhibit P52) was inadmissible hearsay[79].

125.  The evidence relating to the obtaining of the consent to examine D2’s mobile phone has been summarised earlier[80].

126.  Briefly, PC 14886 (PW4) seized from D2 a white Samsung mobile phone (exhibit P9). 

127.  DSPC 46539 (PW11), who conducted a video interview with D2, obtained signed written consent from D2 to examine his mobile phone (exhibit P52).    

128.  PC 14886 was recalled at the end of the prosecution case to identify the signature of D2 on the Tamper Evident Property Envelope, exhibit P9C, was the same as the signature on the written consent.  

129.  WDPC 4171 (PW9) examined the mobile phone of D2.  WDPC 4171 was not present when D2 consented to his mobile phone being examined and only later came into possession of the written consent. 

130.  In the evening WDPC 4171 examined the content of the mobile phone. 

Cross-examination

131.  In cross-examination by Mr Pannu DSPC 46539 said that he believed he obtained the consent before he conducted the video recorded interview; that the time was not recorded on the consent because it was not necessary to do so and that after D2 signed he believed he handed the consent form to a colleague in the same team but could not remember who he handed the form to and could not remember if he handed the form after the interview or the next day.    

132.  In cross-examination by Mr Sherry DSPC 46539 said he believed he did not mention about obtaining consent to examine D2’s mobile phone in his witness statement made on 19 November 2018. 

133.  In cross-examination by Mr Pannu WDPC 4171 said she could not remember what time she had sight of the consent but said that it was in the middle of the night and that the consent was given to her by a detective from their crime squad. WDPC 4171 also agreed that there was no mention in her witness statements about seeing the consent form.

134.  In answer to the court WDPC 4171 said that she could not remember the time she examined D2’s mobile phone except that it was late at night; that she came into possession of the consent around 10 p.m.and that she examined the mobile phone of D2 after she received the written consent[81]. 

Discussion

135.  I have carefully considered the evidence relating to the consent form.  Notwithstanding both DSPC 46539 and WDPC 4171 made no mention of the consent form in their witness statements I accept the evidence of DSPC 46539 that he obtained written consent from D2 to examine his mobile phone and the evidence of WDPC 4171 that she received the written consent form before she examined the mobile phone. 

136.  I was satisfied that the evidence of WDPC 4171 that she examined the mobile phone of D2 only after seeing the written consent was admissible in evidence as was the evidence of DSPC 46539 explaining when the written consent was obtained. 

Examination of the mobile phone

137.  The evidence of WDPC 4171’s examination of D2’s mobile phone has been summarised earlier[82]. Briefly, WDPC 4171 found a WeChat conversation between D2 and ‘AKS’ sent between 4:51 p.m. on 10 October 2018 and 7:38 a.m. on 26 October 2018.  The conversation included photographs which WDPC 4171 suspected were connected with the case.  Photographs of the mobile phone and the WeChat conversation were taken (exhibit P2, photographs 63-76).

138.  The prosecution specifically relies on photographs sent by D2 to AKS on 10 October 2018 namely two photographsof a male (photograph 67 and close up photographs 71-72, exhibit P2) and a photograph of a residence (photograph 68, close up photograph 73, exhibit P2) with the words hand written in Chinese (certified translation exhibit P51):

“Target ground

Black Grey Volks(wagen) JEEF JJ 3382”

139.  I was satisfied the photographs retrieved from the mobile phone of D2 were relevant and ruled the evidence admissible. 

140.  Even if the examination of the mobile phone was without the consent of D2, I was nevertheless satisfied that the evidence remained admissible[83].

141.  I found no grounds to exercise my discretion to exclude from evidence the content of D2’s mobile phone[84].

Identification of X

142.  After obtaining the information of the registered owner of JJ 3382 obtained from the police system WDPC 4171 interviewed the registered owner on 14 November 2018[85].

143.  The defence objected to WDPC 4171 being allowed to say whether the male she interviewed was the same male in the two photographs found on D2’s mobile phone (photograph 67 and close up photographs 71-72).

144.  Mr Pannu objected on the grounds that there was no link between the male and the Jeep; there was no record in the witness statement of WDPC 4171 and there was no record of identification.

145.  Mr Sherry objected on the grounds that the defence were ambushed, the evidence not being in the witness statement of WDPC 4171 and that the opinion of WDPC 4171 whether they were the same male was not relevant.

146.  I overruled the objections and permitted WDPC 4171 to say whether the male she interviewed was the same male in the two photographs found on D2’s mobile phone.

147.  The two photographs of the male were sent by D2 to ‘AKS’ at 4:51 p.m. on 10 October 2018.  Twenty-one minutes later D2 sent ‘AKS’ the photographs of the residence and the reference to “Target and the Jeep JJ 3382”.  Save for an 8 second voice message there was no intervening messages[86]. I was satisfied that WDPC 4171 was entitled to make the identification by way of comparison.

148.  In ruling WDPC 4171 was permitted to make the identification I stated that if the defence required time to consider this evidence they would be given time at the conclusion of WDPC 4171’s evidence-in-chief.  Neither Mr Pannu nor Mr Sherry asked for time and proceeded to cross-examine WDPC 4171 on conclusion of her evidence-in-chief[87].

149.  In cross-examination when asked by Mr Pannu if she made the comparison based on her memory or she opened the phone and visually made the comparison, WDPC 4171 replied that as the case was her responsibility she really remembered the person in the photographs[88].

150.  In cross-examination by Mr Sherry WDPC 4171 said that during the interview she did not have the photographs with her to compare with the man she was interviewing.

151.  In answer to the court when asked about the Tamper Evident Property Envelope (exhibit P9D) in which WDPC 4171 sealed D2’s mobile phone on 13 November 2018, WDPC 4171 explained that after PC 14886 (PW4) had sealed D2’s mobile phone on 26 October 2018 at 11:56 (exhibit P9C)[89]she opened the envelope the same day to examine the mobile phone and did not re-seal the phone in a Tamper Evident Property Envelope until 13 November 2018. 

152.  Asked by the court why she did not re-seal the mobile phone until 13 November 2018 WDPC 4171 explained this was because the content of the phone needed to be looked at again.  WDPC 4171 said that prior to sealing the mobile phone on 13 November 2018 she had last looked at the content of the phone on that day[90].  This was the day before she interviewed the registered owner.

153.  I have carefully considered the evidence of the comparison made by WDPC 4171.  I accept the reason given in cross-examination by WDPC 4171 for not recording the interview with the registered owner in her witness statement was because she did not think it was necessary because she had already recorded this in her Pol. 155 (”Investigation Report”)[91].

154.  Warning myself of the dangers of mistaken identification I find I am satisfied so I am sure I can safely rely on the identification made by WDPC 4171 that the male she interviewed was the same male in the two photographs found on D2’s mobile phone, photographs which she had last looked at the day before the interview.    

155.  On the evidence I am satisfied so I am sure the only inference to draw is that the male in the two photographs was the target.  In making this finding I have taken into account the photographs were sent by D2 on 10 October 2018, sixteen days before the defendants were arrested.  This fact does not cause me to doubt the only inference to draw is that the male in the two photographs was the target.

Conclusion

156.  Taking into account that D1 and D2 were sitting in the front of a stolen vehicle bearing false number plates; the ignition had been prized; knives and hammers suitable for causing serious injury were found in the car; one of the knives was found under the floor mat in front of the front passenger seat and one of the hammers was found inside the front passenger door bin; balaclavas, caps and face masks suitable for covering the face and therefore the identity of the attackers and other items including a tin of suspected petrol, a walkie-talkie and gloves were also found in the car and the photographs on D2’s mobile phone, I am satisfied so I am sure the only inference to draw is that D1 and D2 conspired together and with persons unknown to unlawfully and maliciously wound X, the male in the photographs found on D2’s mobile phone with intent to do him grievous bodily harm. 

157.  In drawing this inference I have considered the evidence of D4 that D2 said the tyres needed changing because the alignment was wrong whereupon D1 drove to a showroom to change the tyres telling the worker of the showroom they needed to change the tyres[92]. In cross-examination PC 8626 (PW3) agreed that the security guard of Triangle Motors told him that the occupants of the car said they came to change the tyres[93].

158.  Whether or not they drove into Triangle Motors to change tyres is neither here nor there and does not cause me to doubt the only inference to draw is that D1 and D2 conspired together and with persons unknown to unlawfully and maliciously wound X, the male in the photographs found on D2’s mobile phone with intent to do him grievous bodily harm.

Were D3 and D4 party to the conspiracy?

159.  The evidence of D4 has been summarised earlier[94]. Briefly D4 testified that after an overnight stay with D3 in a sauna in Yuen Long they were on their way to D3’s home in Tung Chung when they met D1 and D2 by chance in the street in Yau Oi; D1 and D2 invited them to go for breakfast in Sheung Shui and that they were on their way to have breakfast when they were arrested. 

160.  I have no hesitation in rejecting the evidence of D4.  I do not find D4’s evidence credible. 

161.  I find inherently improbable that D1 and D2 would by chance pick up D3 and D4 and invite them for breakfast when they were on the way to commit serious crime unless D3 and D4 were party to the conspiracy.  I am satisfied D4’s evidence that by chance they met D1 and D2 who invited them for breakfast was entirely contrived in an attempt to explain why D3 and D4 were in the car inside which were knives, hammers, a tin of suspected petrol, balaclavas, facemasks, caps and a walkie-talkie. 

162.  In addition, I reject the evidence that D3 and D4 went to a sauna.  D4 testified that D3 called him between 11 p.m. and 12 midnight on 25 October 2018; that they arranged to meet that night at the Silver Sauna in Yuen Long; they met at the sauna between 12 and 1 a.m. and stayed until around 6-7 a.m. on 26 October 2018[95].

163.  In cross-examination D4 said that when D3 called him D3 called him on his mobile phone number 5616 1542; while having the massage his mobile phone was in a locker; that he did not use his mobile phone while having the sauna and that D3 stayed with him all the time in the sauna[96].

164.  The telephone records of D4’s mobile phone number 5616 1542 for the period 24 October 2018 to 26 October 2018 have been admitted in evidence[97].  The records show that between 20:43:33 on 25 October 2018 and 02:42:04 on 26 October 2018 the defendant received six phone calls from telephone number 5680 9314.  The telephone records of 5680 9314 for the period 24 October 2018 to 26 October 2018 have also been admitted in evidence[98].

165.  The six calls were the only calls received by D4 between 20:43:33 on 25 October 2018 and 02:42:04 on 26 October 2018.  No calls were made by D4.  The telephone records also show four calls made by 5680 9314 on 24 October 2018 and two further calls on 25 October 2018. 

166.  In cross-examination on being shown the telephone records D4 was unable to say who the caller 5680 9314 was; on being told that there were twelve calls made by this caller D4 replied that if he checked his phone he would know who the caller was because he did not remember numbers by heart; he was unable to say which was the call made by D3 between 11 p.m. and 12 midnight because he did not memorize the number and that on being told the last six phone calls were from 5680 9314 and the duration of those calls he was still not sure who the caller was[99].

167.  After cross-examination the court asked D4 to check his mobile phone.  The mobile phone, an Apple iPhone which was not produced in evidence, had been seized by the police.  After charging the phone the defendant said he was unable to access the information because the phone had been locked by Apple.

168.  The telephone records contradict D4’s evidence that his mobile phone was in a locker while he was having a sauna.  Mr Sherry submits the phone calls may have been inadvertent ‘pocket dialling” [100]. I have no hesitation in rejecting this submission.  The caller 5680 9314 not only called D4 on 25 and 26 October but also on 24 October with the duration of the calls ranging between 14 and 109 seconds. 

169.  Further, during the period 24 October 2018 to 26 October 2018 the caller 5680 9314 also called and received calls from 6488 7378.  6488 7378 also called and received calls from D1 and D2 on 26 October 2018 including calls made before and after the arrest by the police. 

170.  The telephone records of 6488 7378, D1 and D2 for the period 24 October 2018 to 26 October 2018 have also been admitted in evidence[101].  A table of the telephone records of D1, D2, D4, 5680 9314 and 6488 7378 is annexed to these reasons for verdict[102].

171.  I reject D4’s evidence that he did not know who the caller 5680 9314 was.  I am satisfied D4’s evidence was entirely contrived because he did not want the court to know who the caller was.  

172.  Even if D3 and D4 did go to the sauna this does not cause me to doubt the finding that it was inherently improbable that D1 and D2 would by chance pick up D3 and D4 and invite them for breakfast when they were on the way to commit serious crime unless D3 and D4 were party to the conspiracy. 

173.  I remind myself that the rejection of D4’s evidence is not determinative of the issues in the case.  The defendants have to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove guilt beyond reasonable doubt.

Consideration of the prosecution evidence

The evidence of Mr Wong (PW1)

174.  The evidence of Mr Wong has been summarised earlier[103].  Briefly he saw four males in a car parked next to his car in Chau Tau Tsuen, the village where he lived.  Mr Wong suspected they were going to steal his car or commit burglary. Mr Wong called 999 and gave the registration number to the police but in court he could no longer remember the number. 

175.  Notwithstanding that Mr Wong could not remember the registration number and described three of the occupants as South Asian males, I am satisfied that he saw the car with the registration MG 451, which was the number given to PC 8626 (PW3) by the consul. 

176.  PC 8626 who was on board EU 88 first went to the Chau Tau village but did not see MG 451 which was located later in a layby on Chau Tau Road West.   I also note in D4’s evidence he referred to stopping at a village. 

177.  Mr Wong was not shown the photograph on D2’s mobile phone showing the residence with the word target on a registration number.  There is no evidence before the court that the residence shown in that photograph was Chau Tau Tsuen.

178.  I am satisfied the evidence of Mr Wong is limited to explaining the circumstances in which he called the police which led to the interception of MG 451. 

Integrity of the exhibits seized from the car

179.  Mr Pannu submits that the police evidence of where the items in the car were found smacks of exhibit tampering; is unreliable and it is obvious the police were building a case of ‘knowledge’ having arrested the defendants for possession of offensive weapons[104].

180.  This submission arises from the discrepancy in the evidence of where exactly the jacket (exhibit P30) and four caps (exhibit P31-P34) were found. 

181.  As summarised earlier PC 3755 (PW5), who conducted the first search of the car, testified that he found the jacket and the caps on the rear passenger seat but the jacket and the caps were not spread out as shown in photographs 10 and 11 and that he could not remember how they were positioned on the rear passenger seat[105].

182.  WDPC 4171 (PW9) who seized the exhibits and directed the photographs to be taken testified that when she found the jacket and the caps they were in the position as shown in the photographs.

183.  PC 3755 testified that after finishing the search he left all the items in their original position and then closed the doors to ensure the items were not tampered with[106]. In cross-examination when put that apparently someone did tamper with the exhibits PC 3755 replied that he believed so[107].

184.  Evidence having been given that the police guarded the car, the cap and the jacket should have been in the same position when WDPC 4171 came to seize the exhibits and have the photographs taken. 

185.  I have carefully considered this evidence.  The evidence of PC 3755 and WDPC 4171 is consistent in that the jacket and the four caps were found on the rear passenger seat.  The only difference is as to the exact position they were found on the rear passenger seat.

186.  The fact that there is a discrepancy as to exactly where on the rear passenger seat the jacket and the four caps were found does not cause me to doubt that the jacket and the four caps were found on the rear passenger seat and does not cause me to doubt where all the other items were found in the car.

Knife and face mask found on the ground next to the car.

187.  Whilst it seems most unlikely someone had left a knife on the ground of Triangle Motors, without any evidence that the police saw someone drop or appear to drop items when alighting from the car or forensic evidence showing one or more of the defendants had been in contact with the knife, I am satisfied I cannot take this evidence into account in determining whether D3 and D4 were party to the conspiracy.

DNA

188.  Admitted in evidence is that DNA was found on facemasks and a cap[108]. 

189.  DNA found on the surfaces of a facemask (exhibit P26) could have originated from D3[109].  This facemask was found behind the front passenger seat as shown in photographs 10 and 11[110]. 

190.  DNA found on the surfaces of a facemask (exhibit P15) could have originated from D4 [111]. This facemask was found in a compartment between the driver’s seat and the front passenger seat as shown in photograph 12[112].

191.  DNA found on the inside surfaces and the flap of a cap (exhibit P31) could have originated from both D2 and D3[113]. The cap was found on the rear passenger seat[114].

Analysis of the telephone records

192.  The telephone records between 22:34 on 25 October 2018 and 10:47 on 26 October 2018 show that:

(a) D1 called D2 three times between 00:07 and 06:49 on 26 October 2018;

(b) D1 called 6488 7378 three times and 6488 7378 called D1 six times between 01:59 and 10:47 on 26 October 2018, the last two calls being after D1 had been arrested;

(c) D2 called 6488 7378 once at 09:40 on 26 October 2018 which was after EU 88 had been to Chau Tau Tsuen at 09:34 and before PC 8626 saw MG 451 in a layby at 09:47;

(d) 6488 7379 called D2 three times between 01:15 and 09:06 on 26 October 2018;

(e) 6488 7379 called 5680 9314 three times and 5680 9314 called 6488 7378 four times between 22:34 on 25 October 2018 and 06:53 on 26 October 2018;

(f) 5680 9314 called D4 five times between 22:38 on 25 October 2018 and 02:42 on 26 October 2018.

193.  An analysis of the telephone records shows the close connection between the callers, for example with specific reference to D4:

(a) on 24 October 2018 between 17:00 and 23:14 5680 9314 called D4 four times and 6488 7378 five times. 6488 7378 also called 5680 9314 twice. Five of the phone calls were made between 21:42 and 21:57 in the following sequence: 5680 9314 calls 6488 7378; 5680 9314 calls D4 twice; 5680 9314 calls 6488 7378 and 6488 7378 calls 5680 9314;

(b)on 25 October 2018 5680 9314 called 6488 7378 at 22:34. The call lasts 43 seconds. At 22:38 5680 9314 called D4. This was not the first time that evening 5680 9314 had called 6488 7378 and D4. Between 15:53 and 21:08 5680 9314 called 6488 7378 five times and D4 three times. During this time 6488 7378 also called 5680 9314 once;

(c) on 26 October 2018 between 01:15 and 01:50 there were five telephone calls in the following sequence: 6488 7378 calls D2; 6488 7378 calls 5680 9314; 5680 9314 calls 6488 7378; 5680 9314 calls D4 and 6488 7378 calls D1;

(d) on 26 October 2018 between 02:32 and 02:42 there were four telephone calls in the following sequence: 5680 9314 calls D4 twice; 5680 9314 calls 6488 7378 and 5680 9314 calls D4.

194.  I am satisfied that it is no coincidence that 5680 9314 was telephoning D4 at the same time as telephoning 6488 7378 who was throughout the period telephoning D1 and D2.   

Verdict

195.  In my view the significance of the items found in the car is that the defendants were found in a car in which there was knives and hammers suitable for causing serious injury; balaclavas, caps and facemasks suitable for covering the face and therefore the identity of the attackersand other items including a can of suspected petrol; a walkie-talkie and gloves. 

196.  I find inherently improbable that D1 and D2 would pick up D3 and D4 when they were on the way to commit serious crime in a stolen vehicle in which were knives and hammers unless D3 and D4 were party to the conspiracy. 

197.  Taking into account:

(i) the items found in the car, in particular two knives and three hammers;

(ii) D3 was sat in the back where there were two hammers, one inside a bag, the zip of which was open and a can of suspected petrol (photographs 10, 11, 12, 26, 27, 35 and 36);

(iii) DNA which could have originated from D3 was found on the surfaces of a facemask (exhibit P26) found behind the front passenger seat (photographs 10 and 11);

(iv) DNA which could have originated from both D2 and D3 was found on the inside surfaces and the flap of a cap (exhibit P31) found on the rear passenger seat; and

(v) the inherent improbability that D1 and D2 would pick up D3 when they were on the way to commit serious crime in a stolen vehicle in which were knives and hammers unless D3 was a party to the conspiracy,

I am satisfied so I am sure the only inference to draw is that D3 was a party to the conspiracy.

198.  Taking into account:

(i) the items found in the car, in particular two knives and three hammers;

(ii) D4 was sat in the back where there were two hammers, one inside a bag, the zip of which was open and a can of suspected petrol (photographs 10, 11, 12, 26, 27, 35 and 36);

(iii) DNA which could have originated from D4 was found on the surfaces of a facemask (exhibit P15) found in a compartment between the driver’s seat and the front passenger seat (photograph 12);

(iv) the close connection in the phone calls; and

(vi) the inherent improbability that D1 and D2 would pick up D4 when they were on the way to commit serious crime in a stolen vehicle in which were knives and hammers unless D4 was a party to the conspiracy,

I am satisfied so I am sure the only inference to draw is that D4 was a party to the conspiracy.

199.  I am satisfied so I am sure the only inference to draw is that D3 and D4 conspired together with D1, D2 and others unknown to unlawfully and maliciously wound X with intent to do him grievous bodily harm.

200.  In reaching my verdict I have carefully considered everything said on behalf of D3 by Mr Pannu and on behalf of D4 by Mr Sherry, both individually and collectively.  Nothing said by Mr Pannu or Mr Sherry causes me to doubt the findings I have made.

201.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt as against D3 and D4, the case against D3 and D4 having been considered separately. 

202.  D3 and D4 are convicted as charged.

ANNEX

Notes:

The time and the duration of the phone calls may vary by a few seconds between the certificates of the respective phone numbers.

Notes:

The time and duration of the phone calls may vary by a few seconds between the certificates of the respective phone numbers.

Notes:

The time and duration of the phone calls may vary by a few seconds between the certificates of the respective phone numbers.

*  In the telephone records of D1 (exhibit P4) these two phone calls are recorded as calls diverted to another number. See page 2 of the certificate.