HKSAR v. CHENG SHEK FAI AND OTHERS

DCCC 221/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 221 OF 2014

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Reasons for Verdict

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1.  There are 3 defendants in this case, all facing one joint charge of burglary, contrary to s.11(1)(b) of the Theft Ordinance, Cap.210. Particulars of the charge are that the defendant together with other another unknown person burgled the shop Ramen Jo situated at ground floor, no.3 of Caroline Hill Road on 23^rd December 2013.

Background

2.  Police received information about a possible burglary of the noodle shop Ramen Jo. Covert surveillance was arranged and Police officers were sent to observe the area. There were also closed circuit television footages taken from cameras installed in nearby shops as well as from inside Ramen Jo, showing the arrival of a vehicle HW1011, the movements of the 4 men who were in the vehicle, the breaking in and entry into Ramen Jo by one man, the same man prying open and taking away of the till from the shop, the putting of that till into the vehicle, the movement of the 4 men relative to the vehicle, and the reckless driving away of the vehicle when the burglary was exposed and Police proceeded to apprehend those involved.

3.  Police officers waiting in ambush in the area proceeded to arrest the 3 defendants in the present case. It is the prosecution’s case that they had taken part in the burglary.

Issues

4.  It is not disputed that the 3 defendants were arrested at the area on the night of the burglary. The issue is whether they had taken part in the burglary of Ramen Jo before their arrests. Can the prosecution prove beyond reasonable doubt that the 4 men that PW1 and PW2 saw outside HW1011 were the same 4 men caught on the closed circuit television footages showing their arrival on Caroline Hill Road; whether the man caught on the Ramen Jo closed circuit television footages is in fact D2 and D3 and the same 2 men that PW1 saw breaking into Ramen Jo; whether the man seen stealing inside Ramen Jo was D2; whether D1 was ‘in it together with D2’ if D2 was the man committing the burglary.

Summary of Prosecution evidence

5.  The prosecution called 7 witnesses and they are all Police officers.

PW1 WPC 56103

6.  PW1 Officer Lai was on plainclothes duty from 9pm onwards on 22^nd December 2013. She was standing on Sai Yeung Choi street near Nullah Road (水渠道) at around 11:15pm and spotted a vehicle HW1011. Officer Lai and her colleague DPC5519 (PW2) hid in ambush nearby and kept the vehicle under surveillance.

7.  At 00:02am, PW1 saw 3 men walked towards the vehicle. She was at that time on the opposite pavement at about 2 car lanes’ distance. Street lights were on and lighting was sufficient for her to see clearly two of the 3 men’s faces. PW1 recognized 2 of the men as targets of their operation since she and her colleagues had been given photos of the target suspects about 2 weeks prior to the operation and she had familiarized herself with their faces. PW1 was also told of their age, height and general outlook.

8.  The 3 men got into the vehicle and drove away. PW1 and her colleague immediately got onto a taxi and followed the vehicle. The vehicle went onto Nathan road, stopped in Ngau Tau Kwok near On Tak Road, then turned around and went towards Choi Hung direction and went on Lung Cheung Road. The vehicle was then stopped at a Police road block and then continued towards the Shatin direction. PW1’s taxi continued to follow the vehicle through Lion Rock Tunnel and to Tai Wai when their taxi had to stop at a red light and they lost the vehicle.

9.  PW1 then received instructions to proceed to Caroline Hill Road. By the time PW1 and her colleague got there, she saw that HW1011 was already there and parked outside no.17C of Caroline Hill Road. PW1 confirmed that HW1011 is the vehicle parked next to the lamp post and with the headlights on, as seen in photo 1 of album P-125, being images taken from the closed circuit television footage of a nearby garage.

10.  At the same time that PW1 and her colleague saw HW1011, she also saw 4 men wandering around on the street outside the vehicle. PW1 immediately recognized the 4 men as the target suspects. These are the men whose photos and basic information had been provided to her about 2 weeks before the operation on the night. That was the reason why PW1 was immediately able to identify the men by name when she saw them.

11.  PW1 identified the man wearing a grey jacket, blue jeans and about 5’10” tall as one Cheng Shek Fai, being D1 in this case; the man wearing a blue jacket, blue jeans and about 5’6” to 5’7” tall as one So Hon Ho, being D2 in this case; the man wearing a brown jacket, blue jeans and about 5’9” to 5’10” tall as one Cheng Sik Kwong, being D3 in this case; and the man wearing glasses and about 5’6” to 5’7” tall as one Chan Wing Yuen, being a wanted person in this case (“WP”). PW1 recognized WP as the person who was driving HW1011 earlier on. PW1 cannot recall the exact time when she saw the 4 men, just that it was about 1am odd.

12.  PW1 and PW2 went to the opposite side of the road to keep them under surveillance, pretending to be lovers passing by. PW1 saw the 4 men walking back and forth and wandered near Ramen Jo. PW1 notified her team members and confirmed that the 4 target men were on Caroline Hill Road. PW1 was then instructed to find a high point to continue with their surveillance.

13.  PW1 and PW2 eventually found their way on to the rooftop of a nearby building, which was a government building at no.8 Caroline Hill Road. From there, they were able to see the full length of the road. At that time, PW1 saw D1 standing on Leighton Road and Caroline Hill Road area, while D2 and D3 were walking up and down Caroline Hill Road. D2 and D3 would walk to the Ramen Jo store position, up to near Leighton Road and then back to Caroline Hill Road. WP stood near the parked coach as seen in photo 1 and smoked. PW1 informed all her team members about the positioning of the 4 men through her walkie-talkie.

14.  PW1 then saw WP opened the driver door of HW1011 and opened the boot from there and then D2 took out a backpack from inside the boot. After D2 took out the backpack, he walked towards Ramen Jo. Then D3 walked to the entrance of Ramen Jo. PW1 then saw D2 walked back to the car and put the backpack back in the car, but only for a short time. Shortly thereafter, D2 took the backpack back out from the car again and then PW1 saw D2 and D3 stood in front of the glass door entrance of Ramen Jo. The 2 of them were facing the glass door and then D3 put his hand into D2’s backpack and took something out. PW1 could not see what it was that was taken out because both of them had their back towards her.

15.  After D3 took out the thing, he leaned down while D2 turned to face Caroline Hill Road, blocking the whole body of D3 from PW1 and so she was not able to see what D3 was doing.

16.  About 1 to 2 minutes later, both D2 and D3 left the entrance of Ramen Jo. After another 1 to 2 minutes, D2 walked to Ramen Jo and entered the shop through the glass door entrance. D2 was inside the shop for about 7 to 8 minutes and then he came out carrying a 1.5 feet x 1.5 feet box and loaded the box into HW1011’s boot. D2 was still carrying a backpack. PW1 then saw WP took out an umbrella from the boot and handed it to D2.

17.  Later on, PW1 heard her superior over the walkie-talkie to take action and proceed to make arrests. PW1 herself did not take part in the arrest.

18.  The backpack that was on D2 (the fact that D2 was arrested on that night by Police officers is not disputed) when he was arrested by Police officers (see evidence of PW4 below) was shown to PW1 and she confirmed that it was the one she saw D2 carrying. PW1 was also shown an umbrella and PW1 confirmed it was the one that WP took out from the boot and gave to D2. This umbrella was seized by Police officer and was seen by PW4 to have been dropped by D2 at the time of his arrest on the night.

19.  The grey jacket that D1 was wearing at the time of his arrest (as per paragraph 6 of the admitted facts) was shown to PW1 and she confirmed it was the jacket that D1 was wearing throughout her observation of him.

20.  The blue jacket that D2 was wearing at the time of his arrest (as per paragraph 6 of the admitted facts) was shown to PW1 and she confirmed it was the jacket that D2 was wearing throughout her observation of him.

21.  The brown jacket that D3 was wearing at the time of his arrest (as per paragraph 6 of the admitted facts) was shown to PW1 and she confirmed it was the jacket that D3 was wearing throughout her observation of him.

22.  In cross-examination, PW1 confirmed that the address of her observation point on Caroline Road was not recorded in her witness statement. PW1 explained that she found it enough just to write down that she was at an observation point without giving other information. She did not deliberately choose to leave out the address. PW1 then confirmed that building as the white building that can be seen between the trees on right side of the photo produced on behalf of D1 (marked as D1-1).

23.  The rest of PW1’s cross-examination was very brief, D1’s counsel pointed out that D1 had not wandered on Caroline Hill Road nor did he talk with other people. D2’s counsel pointed out that D2 simply had not appeared on Caroline Hill Road. D3’s counsel pointed out that the clothing that PW1 identified as being worn by D1, D2, and D3 were being wrongly identified and the exhibits merely look similar to the clothing of the 3 men. PW1 disagreed with all the suggestions.

PW2 DSPC5519 Fung Gar Kin

24.  Officer Fung was the team member of PW1 on the night of 22^nd and in the early hours of 23^rd December 2013. He was also on plainclothes duty. At around 11:15pm, he was with PW1 on duty when they spotted the vehicle HW1011 on Sai Yeung Choi Street near Nullah Road (水渠道). PW2 saw 3 men got into the vehicle. At that time, PW2 was about 10 meters from them, street lamps were on and lighting was sufficient for PW2 to see the men’s faces. The men were walking towards Butt Street when he saw them. One wore a dark jacket, one a brown jacket and blue jeans and one a blue jacket with blue jeans.

25.  After the 3 men got into HW1011, PW2 got on a taxi with PW1 and followed that car. The car went through the Mongkok district, then to the Kwun Tong district, then to Diamond Hill area, then the Shatin area, and then to Hong Kong island. PW2 lost sight of the vehicle eventually, but was then informed by his colleague that the vehicle was seen to have parked at no.17 Caroline Hill Road.

26.  PW2 and PW1 directed the taxi to go to Leighton Road and Haven Street junction and got out at the point as marked with a circle on P-129A. The two of them then walked from Haven Street towards Lei Wen Court, turned left into a podium, then turned right into Caroline Hill Road, passing Caroline Hill Court, then up Caroline Hill Road towards Leighton Road.

27.  When PW2 and PW1 went through the building and into Caroline Hill Road, he saw HW1011 parked outside no.17 Caroline Hill Road. PW2 was together with PW1 when he saw 4 men nearby.

28.  It is PW2’s evidence that he had seen 3 of those men before earlier on in the Mongkok area at around 00:02am on Sai Yeung Choi Street. The 3 men were in the same clothing as the 3 men who got into HW1011 earlier on, and since PW2 was also able to see their faces, he confirmed that the 3 men were the same 3 men. The 4^th man was wearing a grey jacket and blue jeans. PW2 was about 15 to 20 meters from them when he made that observation.

29.  The 4 men were wandering and chatting on Caroline Hill Road. PW2 and PW1 continued to walk on Caroline Hill Road towards Leighton road and then turned left to find an observation point. They eventually managed to enter no.8 Caroline Hill Road, which was an old government building. The two of them positioned themselves on a podium where they could see the whole of Caroline Hill Road.

30.  From the observation point, PW2 saw the man in grey jacket and blue jeans continued to stand on Leighton Road near Caroline Hill Road while the other 3 men were walking around and talking from time to time.

31.  PW2 then received his order to go downstairs to wait for instructions and to prepare for action.

32.  At 2:17am, PW2 received order from his team sergeant to intercept and arrest the 4 men he saw earlier. PW2 went to Sunning Road near Leighton Road.

Assisting in the arrest of D2

33.  He walked along Leighton Road and turned right into Caroline Hill Road. After he turned into Caroline Hill Road and was about 10 meters into the road, he saw one of the men he saw earlier running out towards Leighton Road with his colleague Police officer 4238 (PW4) chasing behind. This man was wearing blue jacket and blue jeans and he was one of the 3 men whom PW2 saw got into HW1011 earlier on at Sai Yeung Choi Street near Nullah Road (水渠道).

34.  PW2 immediately joined in the chase. The man ran out of Caroline Hill Road, across Leighton Road and into Pennington Street. The man fell down just after he ran onto Pennington Street and PW2 and PW4 went up together to control the man. PW4 then put handcuffs on the man. It is PW2’s evidence that he never lost sight of the man from the moment he saw the man being chased by PW4 to when PW4 put handcuffs on him. PW2 marked the route he took when he chased the man with a dotted line on a copy of the road map in exhibit P-129A.

Arresting D3

35.  PW2 then went to assist his other colleague DSPC54176 (PW3). What happened was that, while PW2 was chasing the first man, he saw PW3 chasing another man at the same time. The second man was running along Leighton Road towards Causeway Road.

36.  PW2, as he said earlier, continued to chase the first man and after the first man was handcuffed by PW4 on Pennington Street, PW2 immediately turned to chase after the second man, following after PW3. PW2 therefore had taken his eyes off the second man for about 5 to 10 seconds. The street was however deserted at that time and 54176 was chasing just that one man and there were no other people on the street.

37.  It was PW3 54176 who first caught up with the second man outside no.2-6A Causeway Road. The man put up a struggle and resisted PW3 and so PW2 went up to assist and handcuffed the man. It is PW2’s evidence that once he joined in the chase of the second man, the man was always in his line of sight right up to the point when PW2 put a pair of handcuffs on him. PW2 used a blue continuous line to show the route of his chasing this second man on exhibit P-129A.

38.  PW2 had not seen this second man on Sai Yeung Choi Street earlier on, but he was one of the 4 men that PW2 saw after PW2 had arrived at Caroline Hill Road and saw HW1011.

39.  It is not disputed that the second man that PW2 had put his handcuffs on was D3. The brown jacket that was seized from D3 after his arrest (P-86, see paragraph 6 of admitted facts) was then shown to PW2 in court and PW2 confirmed the jacket as similar to the jacket that D3 was wearing when he was arrested.

40.  The blue jacket that D2 was wearing at the time of his arrest (P-101, paragraph 6 admitted facts) was shown to PW2 and he confirmed it was the blue down jacket that the first man was wearing when he was handcuffed by PW4 on Pennington Street.

41.  During cross-examination, PW2 said that while the 3 men were walking on Sai Yeung Choi South Street towards Butt Street, he had about 30 seconds to observe them.

PW3 DSPC 54176

42.  Officer Tse was on duty from 9pm onwards on 22^nd December 2013. He and Deputy Sergeant 3072 were tasked with following a vehicle HW1011 that night. His taxi was not the same taxi that PW1 and PW2 were in. HW1011 eventually stopped on Caroline Hill Road and PW3 continued to observe.

Subduing D3

43.  At 2:17am, PW3 received order from his superior to conduct an arrest. PW3 therefore walked onto Leighton Road from Sunning Street and walked towards Caroline Hill Road. At that time, PW3 saw a man standing near the junction of Leighton Road and Caroline Hill Road and was walking out towards Leighton Rd. He also saw another man walking along Caroline Hill Road towards Leighton Road. PW3 understood that he was to arrest both of the men.

44.  When PW3 was getting nearer, the first man he saw paused, turned right and walked a few steps towards Causeway Road. PW3 then walked in a brisk pace towards Leighton Road and Caroline Hill Road, the man turned around and then realized he had to run and did start to run towards the Causeway Road direction. PW3 immediately gave chase and shouted “Police! Don't run!” They ran for a distance and PW3 managed to catch up with the man outside no.2-6A Causeway Road. PW3 tried to control the man but the man resisted and struggled. At that time, PW2 also came up to assist in controlling the man and eventually handcuffed the man.

45.  It is PW3’s evidence that the man was wearing a brown jacket and blue jeans. The jacket that D3 was wearing at the time of his arrest that night (paragraph 6 of admitted facts) was shown to PW3 and he confirmed that it was what the man that he chased and later controlled was wearing. PW3 confirmed in cross-examination by D3’s counsel that D3 was the person who was subdued.

PW4 DPC4238 Yu Chun Hei

46.  Officer Yu was on plainclothes duty from 9pm of 22^nd December 2013 onwards and was tasked with tracking HW1011. PW4 eventually arrived at Caroline Hill Road at around 1:43am, 23^rd December. PW4 however did not see HW1011 when he was there as his duty at that time was to standby his team members and to listen to their radio communication and to follow their instructions to go where he needed to go. PW4 was stationed at Sunning Road near Leighton Road.

Arresting D2

47.  At around 2:17am, PW4 received orders to conduct arrests. He therefore walked along Leighton Road towards Caroline Hill Road. When he was near that area, he saw a man walking out from no.106 Leighton Road at a brisk pace.

48.  PW4 later on pointed out in photo 1 of P-128 where the man came out from, which was at the white coloured doorway just behind the ‘Coca-Cola’ banner on the right hand side. Although the doorway opens into Caroline Hill Road, the doorway was in fact a side exit belonging to the building at no.106 Leighton Road.

49.  This man who came out from the doorway was about 41 years old, wearing a dark blue jacket, carrying a backpack on his back and holding an umbrella. A dark blue jacket (P-101) that D2 was wearing at the time of his arrest (as per paragraph 6 of admitted facts) was shown to PW4 in court and he confirmed that it was the one that the man was wearing on that day.

50.  It is PW4’s evidence that he was about 2 to 3 meters from the man when he first saw him came out from the doorway, the street lamps were on, lighting was sufficient and nothing to block him from seeing the man’s whole person including his face.

51.  When PW4 saw the man walking briskly out from the doorway and onto the pavement, PW4 immediately held up his Police warrant card and identified himself as a Police officer. The man looked at PW4 and then immediately started to run, while throwing down the backpack and the umbrella. The man ran towards Leighton Road direction.

52.  PW4 immediately gave chase and shouted for him to stop. The man ran across Leighton Road and towards Pennington Street. PW4 kept chasing the man, with the nearest distance between them being about 2 to 3 meters and the furthest distance no more than 5 meters. It was a straight run and chase without turning any corners. The man fell forward and down when he got to Pennington Street. PW4 and his colleague DPC5519 (PW2) immediately went up to control the man by pressing him down on the ground.

53.  The man continued to struggle even after he fell to the ground. In order to control the man, PW4 cuffed the hands of the man behind his back. The man was then brought back to outside no.106 Leighton Road for investigation. PW4 later proceeded to arrest and caution the man who exercised his right and remained silent. PW4 confirmed that the man he chased, subdued and then arrested was in fact D2.

54.  A backpack and umbrella was shown to PW4 and he confirmed that they were the backpack and umbrella that D2 was carrying and dropped as described above.

55.  PW4 also confirmed that the position where D2 dropped the backpack and the umbrella is as shown in photo 6 of P-128. The mailbox in photo 6 can be seen from another angle in photo 2, on the left of the photo.

56.  During cross-examination by D2’s counsel, it was suggested to PW4 that D2 was walking along Leighton Road from St. Paul’s Convent’s direction towards Po Leung Kuk direction. PW4 disagreed. It was pointed out to PW4 that D2 never dropped off a backpack, nor was D2 holding an umbrella at any time. PW4 also disagreed with that.

PW5 DPC45689 Cheung Shui Lun

57.  Officer Cheung was on duty from 9pm on 22^nd December 2013 and took part in the arrest of one of the defendants on the night of 23^rd December.

Assisting in the arrest of D1

58.  PW5 was stationed at Sunning Street and Leighton Road area when he received order at 2:17am to conduct an arrest. PW5 walked along Leighton Road towards Caroline Hill Road at a brisk pace. When he got to the junction of the two roads, outside no.106 Leighton Road, PW5 intercepted a man. PW5 used his hands to hold the left and right hand of the man and told the man that he was a Police officer and ordered him not to move. The man ignored PW5 and struggled with PW5, but immediately a colleague DPC48344 (PW6) assisted and put handcuffs on the man. The man was then made to squat on the pavement outside no.106 Leighton Road.

59.  PW5 was shown the jacket that D1 was wearing at the time of his arrest (paragraph 6 of admitted facts) and confirmed that it was the same grey jacket that the man he arrested that night was wearing. It is admitted fact that D1 was arrested and cautioned by DPC48344 at no.106 Leighton Road at 2:25am. The man that PW5 intercepted outside no.106 Leighton Road was D1.

PW6 DPC48344 Cheung Chi Hung

60.  Officer Cheung was on duty from 9pm on 22^nd December 2013. At 2:17am, PW6 was positioned on Hoi Ping Street inside a government vehicle with the front pointing towards Leighton Road when he received the order to perform an arrest.

Assisting in the arrest of D1

61.  PW6 immediately started his car. When he got to the junction of Leighton Road and Caroline Hill Road, he saw his colleague DPC45689 (PW5) holding on to a man. PW6 stopped immediately, got out of the car and ran towards them while shouting out his Police identity and told the man not to move. PW5 took out his handcuffs and helped to control the man.

62.  The man was later brought to outside no.106 Leighton Road and other Police officers declared arrest on the man at 2:25am for burglary. It is admitted fact that D1 was subdued with the help of PW6 at 2:17am and arrested at 2:25am. The man is D1 in the present case.

PW7 DPC3719 Tam Ho Sang

63.  Officer Tam was on duty from 9pm onwards on 22^nd December 2013. He arrived at the junction of Leighton Road and Sunning Road at 1:41am on 23^rd December and waited there for his orders.

Trying unsuccessfully to stop HW1011 being driven away

64.  When PW7 received his orders to conduct arrest at 2:17am, he immediately ran along Leighton Road and turned into Caroline Hill Road and was diagonally opposite Ramen Jo. A man who was standing on the opposite side of the road walked to the vehicle HW1011 that was parked outside no.17 Caroline Hill Road and got into the car. PW7 ran up to the driver side of the vehicle but the man started to reverse the car. The vehicle moved for about 2 meters and then PW7 caught up with it and went up to the driver side again and shouted “Police! Stop!”. The man looked at PW7 and ignored him. PW7 meanwhile tried to pull out the car key from the ignition but was unsuccessful. The man eventually drove away.

65.  The P-125 Photos lifted from closed circuit television footage of the material stretch of Caroline Hill Road was shown to PW7 and he confirmed that he was the person in photo 31 who was on the right side of the vehicle next to the lamppost. The man was already in the driver seat of the vehicle. PW7 confirmed that he was standing next to the driver seat in photo 32, then pulling open the driver door in photo 33 and 34. Photo 35 show the vehicle pulling right and then in photo 36 the vehicle can be seen to be driven away.

66.  PW7 was not cross-examined by any of the defence counsel, and after a final amendment to the admitted facts had been confirmed, the prosecution formally closed its case. There was no no-case submission and the court found a case to answer against all 3 defendants. The defendants fully understood their rights and elected not to give evidence, nor call any defence witnesses.

Findings

67.  It is for the prosecution to prove beyond reasonable doubt all the elements of the offence against each of the defendants. D1 is of clear record, as such, I have to take that into consideration when assessing his propensity to commit the offence that he is charged with.

68.  It is not disputed, and I do so find, that the man who was seen to be inside Ramen Jo had entered the premises as a trespasser and he did then steal cash of $40,416.20, some receipts and a till. The issue is whether the prosecution can prove beyond reasonable doubt that the man was in fact D2.

69.  If that was D2, the prosecution will then have to prove that D1 and D3 were ‘in it together’ with D2 in the commission of the burglary.

Identification evidence

70.  I find all the prosecution witnesses honest and reliable. In considering their identification evidence, I have directed myself according to the guidelines in the case of R v Turnbull [1977] QB 224, meaning that there is special need for caution before convicting the defendants in reliance on the correctness of the identification of them.

71.  Having so directed myself, I nevertheless find that I can rely fully on the identification evidence of the prosecution witnesses.

72.  It is PW1’s evidence that she had been given specific photos to familiarize herself with the target suspects prior to the operation. Although it is admitted facts that those photos are no longer in existence and so the court is not able to gauge the likeness of the photos compared to the defendants, I find that it does not detract from PW1’s identification of the men she saw. Given the circumstances and timing of the 3 defendants’ arrest, and the admitted fact that the defendants were arrested on the night, the photos must have correctly shown the faces of D1, D2 and D3.

73.  What PW1 saw at Sai Yeung Choi Street was 3 men getting into HW1011. She immediately recognized 2 of them as targets. When PW1 later arrived at Caroline Hill Road she saw the same 3 men together with a fourth and this time she was able to identify all 4 by their names because they resembled the suspects in her photos.

74.  As to the quality of her identification evidence, given that it was late in the night and according to evidence and the closed circuit television footages there were not many passersby throughout the operation, given that PW1 was specifically tasked with keeping surveillance and was at a high point that allowed her to see clearly from above the movement and action of the 4 men in sufficient lighting, I find that there was no room for any mistaken identity and that PW1 is correct in her evidence in relation to the identification of the 4 men and their movement.

The closed circuit television footages

75.  I find that I can place full weight on the contents of the closed circuit television footages, except for the time stamps shown on the footages of the Ramen Jo system. I find that the 4 people seen in the Gar Lo Garage closed circuit television footage are the same 4 men that PW1 and PW2 saw on Caroline Hill Road when they arrived there. I find that the footages corroborate the evidence of PW1 and PW2 as to the movement of the 4 men in the area during their surveillance. I find that the 4 men who got out of the car are D1, D2, D3 and WP.

The Gar Lo Garage footages

76.  In the first video segment timed between 01:32 and 01:45, it can be seen clearly in the footage that at one point one man walked up to HW1011, opened the driver door while one man stood behind the boot and then took out a backpack. The man who opened the driver door stayed in the frame while the other walked away. Based on the evidence of PW1, I find that the person who opened the driver door of HW1011 was WP while the man who stood behind the boot and took out the backpack was D2.

77.  Shortly after D2 had walked away towards the Ramen Jo direction with the backpack, D2 came back to the car and put the backpack into the car while a black car was parked at around the area diagonally opposite Ramen Jo and behind the parked van. Once the black car had left, D2 returned to HW1011 and took the backpack back out and walked back towards the direction of Ramen Jo. WP and another man also came back into the frame from the left hand side.

78.  Later on, a man was seen walking to the back of the vehicle from the direction of Ramen Jo while holding something that looked like a rectangular box in his hand. The man lifted open the boot of the vehicle put the box inside. The man closed the boot and turned around. It can be seen in the footage that this man was carrying a backpack over his right shoulder. Based on the evidence of PW1, I find that this man was D2.

79.  Towards the end of the footage, one of the two men who had been standing behind the parked van on the left of the frame was seen to walk back to the car, opened the driver door and got into the driver seat and then closing the door. Another man was then seen to approach the car. The car reversed and moved for about one car’s distance. The man opened the driver door while the car was moving. Another man came running out onto Caroline Hill Road towards the vehicle but the car pulled to the right and sped away, narrowly missing the man who was pulling open the driver door earlier. Based on the video evidence, the evidence of PW1 and PW7, I find that the driver was WP and that the man who was pulling open the driver’s door was PW7.

The Chung Kee Store closed circuit television footage

80.  First of all, judging from the angle of view of the camera, and looking at photo 1 in P-128 of Chung Kee Store, which is on the right side of Ramen Jo if one is looking at the shops from the opposite side of Caroline Hill Road, if a person is seen walking towards the camera in the footage, the person would be walking towards Ramen Jo. If a person is seen walking away from the camera, that person would be walking away from Ramen Jo as well as where HW1011 was parked.

81.  The position of the camera can be estimated from photo 5 of the P-128 photo album, showing the small 2 tiered low shelf on the ground and diagonally opposite the rubbish bin, suggesting the camera was near the blue ‘Aquarius’ banner seen in the photo.

82.  In this footage, there was movement of a few men past the store front, as well as one man who at one point stood inside the doorway directly under the camera with only the fronts of his sneakers visible. At the time stamp 02:18:55 (see photo 16 of P-126), a man carrying a backpack and holding an umbrella is seen running towards the upper right corner of the frame, meaning that the man was running away from Ramen Jo. Based on the evidence of PW1, PW2 and PW4, I find that this running man was D2.

The Ramen Jo closed circuit television footage

83.  There are various cameras installed inside the premises, showing different parts of the shop, including the area where the till was. In the footage, at 01:10:33, two men can be seen standing outside of the glass doors of the shop. This corroborates with PW1’s evidence about how D2 and D3 stood outside Ramen Jo. One was carrying a backpack on his back and stood with his back facing the other, taller man. The taller man took out something from the bag and then stood in front of the glass doors. The man with the backpack had his back facing the taller man while the taller man lowered his upper body and was doing something to the door (01:12:44).

84.  At time stamp 01:12:52, the two men walked away one after the other, to the left side of Ramen Jo. Given the position of the camera and the store front, the men would have been walking towards the direction of where HW1011 was parked and away from Chung Kee Store. This part of the footage corroborates PW1’s evidence about how D2 and D3 behaved outside Ramen Jo.

85.  About one minute later at 01:13:58, a person carrying a backpack re-appeared and he opened the glass door and entered the shop at 01:14:01. This corroborates PW1’s evidence about D2 entering Ramen Jo. Once inside the shop, the man took down the backpack that he was carrying, opened the backpack, looked for something inside, found a prying tool, inserted the tool and opened what looked like the till drawer very easily (01:14:25-29). He then started to take things out from the drawer and carried on for some time. This man was alone in the shop throughout the duration of the footage.

86.  The man then took out a torch from the backpack for illumination and took more things out from the drawer. At time stamp 01:16:31-36, the man is seen to be doing more prying. The man appeared very patient throughout with no sign of panicking or rushing through the job. At 01:18:35-46, he was seen to be moving around the shop. At 01:19:11 he returned to the till again and went through the stuff underneath. He then attempted to move the whole till out. He was holding a pair of scissors at one point.

87.  At 01:20:17, he squatted down with the torch still on, he packed up. He then put the backpack on his shoulder, moved away and left through the same glass door he entered at 01:20:37. He turned left after going out of Ramen Jo, meaning that he would be going towards the direction of where HW1011 was parked. It can be seen at 01:20:38 that he was carrying a sizeable object in his right arm when he left the shop. This corroborates the evidence of PW1 who said she saw D2 carry out from Ramen Jo a 1.5 feet x 1.5 feet box. In all, this man was inside Ramen Jo for about 6 and a half minutes according to the time stamp of the footage. This is slightly different to PW1’s evidence of D2 being inside for some 7 to 8 minutes but I find that this is not a significant difference.

The time stamp problem

88.  There is however one problem regarding the Ramen Jo footage, which is that the time stamp on the closed circuit television footage shows a time that is much earlier than the time frame described by the prosecution witnesses.

89.  If the time stamps on the closed circuit television footage of Ramen Jo was taken as accurate, the arrest order at 2:17am came about one hour after the man finished the burglary and left Ramen Jo. Yet, according to the footages of the Chung Kee Store closed circuit television camera, the man carrying the backpack and holding an umbrella started running out from the doorway at 02:18am and people were running after him at the same time.

90.  I find that this problem can be resolved by looking at other available facts.

91.  It is admitted fact that HW1011 was spotted by DSP54176 (PW3) outside no.17 Caroline Hill Road at 1:43am. According to the evidence of PW1 and PW2, after they lost HW1011, they were told by colleagues that the car had shown up at Caroline Hill Road and so they went there to carry on with the surveillance. By deduction, by the time that PW1 and PW2 arrived at Caroline Hill Road and saw HW1011, it would have been after 1:43am.

92.  According to PW1 and PW2, they then went up to the observation point and saw the same 4 men wandering in the area. PW1 saw WP opened the driver door and then D2 opened the boot and took out a backpack. D2 then walked back towards Ramen Jo. D3 then walked also to the entrance of Ramen Jo. D2 walked back and put the backpack back into the car and shortly thereafter took it back out and then D2 and D3 stood in front of the glass door entrance of Ramen Jo. The two of them faced the glass door and D3 put his hand into D2’s backpack and took something out. D3 leaned down while D2 faced Caroline Hill Road, blocking D3 from PW1’s view. This part of PW1’s evidence is corroborated by video footage.

93.  About 1 to 2 minutes later, D2 and D3 left the entrance of Ramen Jo. After another 1 to 2 minutes, D2 walked back to Ramen Jo and entered the shop through the glass door entrance. It is PW1’s evidence that D2 was inside Ramen Jo for about 7 to 8 minutes and then he came out carrying a 1.5 feet x 1.5 feet box and loaded the box into the boot of HW1011. D2 meanwhile was still carrying a backpack. PW1 then saw WP took out an umbrella from the boot and handed it to D2. That was when PW1 heard over the walkie-talkie her superior’s order to take action and proceed to make arrests.  According to PW2, 3, 4, 5, 6 and 7’s evidence, this was 2:17am.

94.  The description of D2 and D3’s action in front of Ramen Jo is perfectly corroborated by the video footage of the Ramen Jo closed circuit television. If however the time stamp in the Ramen Jo footage is taken as accurate, and at the same time the evidence of PW1 is accepted as accurate as well, it would mean that on the night of 23rd December 2013, Ramen Jo was burgled twice, once between the time stamp shown on the footage screen of 01:10:00 and 01:20:00, and the other time in the time frame as described by PW1 and supported by other evidence.

95.  I find that the only irresistible inference once it is accepted that PW1 was telling the truth and her timing is the accurate version is that the clock setting of the Ramen Jo closed circuit television system was incorrect and the time stamp shown on screen was not the actual time the events were taking place. I do so find.

96.  I further find that the man seen in the Ramen Jo closed circuit television footage is D2.

Verdicts

D2

97.  I find that the man whom PW1 saw carrying a backpack and putting the rectangular box into the boot of the car and then taking an umbrella from WP was the same person whom PW4 saw came out from the doorway near the ‘Coca-Cola’ banner on Caroline Hill Road who was carrying a backpack and holding an umbrella.

98.  Since this man was the person whom PW4 eventually arrested, who was in fact D2, and since according to PW1 it was this same man who had stood in front of the glass door and then later entered Ramen Jo, and since the Ramen Jo closed circuit television footage showed the man taking out an object from inside Ramen Jo and then walked towards HW1011’s direction, and it is PW1’s evidence that the same man came back out carrying a similar object and then putting it into the boot of HW1011, I find that D2 was in fact the person who had entered Ramen Jo. I find that D2 entered Ramen Jo as a trespasser and that he had stolen inside. I find that the property stolen are as set out in paragraph 11 of the admitted facts.

99.  D2 is convicted of the charge of burglary accordingly.

D3

100.  I find that based on PW1’s evidence and based on the time and place of arrest of D3, the only irresistible inference is that D2 was the person who actually entered and burgled Ramen Jo and D3 was the person who stood with D2 outside Ramen Jo and D3 had assisted D2 to open the door of Ramen Jo so that D2 would be able to enter to steal.

101.  I find that D2 and D3 were ‘in it together’ in relation to the burglary of Ramen Jo on the night and convict D3 of the charge of burglary accordingly.

D1

102.  In relation to D1, I have borne in mind that although D1 struggled when PW5 sought to restraint him having revealed his Police identity, it is not by itself proof that D1 is guilty of the burglary.

103.  I find however that there is sufficient circumstantial evidence to prove that D1 was not an innocent bystander in relation to the burglary.

104.  D1 was in HW1011 together with D2, D3 and WP when HW1011 arrived outside No.17 Caroline Hill Road. In the Gar Lo garage closed circuit television footage, it can be seen that as soon as the 4 men got out of HW1011, they headed straight towards the direction of Ramen Jo. Since it is PW1’s evidence that D1 was one of the 4 men, D1 was also walking straight towards the direction of Ramen Jo right after getting out of the vehicle.

105.  After the 4 men came back from the Ramen Jo direction and went out of camera for a short time, they walked back into frame. Two of them went towards the Ramen Jo direction again, while 2 crossed the road to behind the parked van.

106.  Later on in the footage, D2 went to the boot and took out a backpack and then walked towards the Ramen Jo direction. He came back shortly after, probably because of the presence of the black car parked diagonally opposite Ramen Jo, and then put the backpack into the car. Once the black car had gone, D2 retrieved the backpack from HW1011 and walked towards the Ramen Jo direction. At this point, WP also appeared in the frame again but he did not join D2. WP went to the back of the parked van and loitered there while smoking. A man was seen to join him.

107.  It cannot be seen directly from the footage who this man was. Later on, D2 (as confirmed by PW1’s evidence) appeared and put the rectangular box into the boot while WP was standing near the vehicle. D2 then walked back towards the direction of Ramen Jo with the backpack on his right shoulder while WP continued to stand on the pavement and keeping a lookout.

108.  A short time after D2 had walked away, WP opened the boot and took out something. According to PW1’s evidence, that would have been WP taking out the umbrella to give to D2. The footage does not show the actual giving since WP had walked away towards the Ramen Jo direction. Shortly after WP came back, he first walked to behind the parked van again and loitered there for a while. Not long thereafter, WP got into HW1011. At this point, PW7 appeared and WP drove the car away.

109.  It is PW5 and PW6’s evidence that D1 was intercepted near the junction of Caroline Hill Road and Leighton Road, outside no.106 Leighton Road. Since PW7 also started to try to arrest WP at 2:17am, and since HW1011 was near the area of no.106 Leighton Road, D1 must have been near no.106 Leighton Road as well when WP went to pass the umbrella to D2.

110.  The time of D1’s arrival up to his arrest was in the middle of the night. D2, D3 and WP were obviously in the Caroline Hill Road vicinity to commit the burglary. I find it impossible that D1 did not know about WP, D2 and D3’s burglary plan. I find that there was no other reason for D1 to be present given the circumstances, and that the only irresistible inference to be drawn from his presence is that he was there to take part in the burglary as one of the lookouts. I find that D1 was ‘in it together’ with D2 and D3 in the burglary of Ramen Jo that night.

111.  I convict D1 of the charge of burglary accordingly.