HKSAR v. WONG SZE SING also known as WONG PAK YIN AND ANOTHER

DCCC 1106/2021

[2022] HKDC 832

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1106 OF 2021

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

1.  These two defendants, each faces a single count of Robbery. Charge 1, which is against D1, reads as follows:-

“Wong Sze-sing (also known as Wong Pak-yin), on 11 January 2020, at a fuel station, near Lamppost No AB4177, Ching Cheung Road, Cheung Sha Wan, Kowloon, in Hong Kong, together with Chong Chin-tong, Lee Yi-hei, Cheng Long-hei and a person unknown, robbed Kwan Chun-chow and Lo Wing-kwong of cash of HK$12,600.”

2.  Charge 2, which is against D2 only, says as follows:-

“So Cheuk-lam, on 12 January 2020, at a fuel station, near Lamppost No AB4177, Ching Cheung Road, Cheung Sha Wan, Kowloon, in Hong Kong, together with Chau Ching-lam, Lee Yi-hei and Cheng Long-hei, robbed Kwan Chun-chow of cash HK$2,500.”

The prosecution’s case

3.  On each of these occasions the fuel station named in the charge sheet, which was a shady set-up near a roundabout on Ching Cheung Road, Cheung Sha Wan, where dutiable petroleum was sold, very likely illegally, was robbed by a bunch of young people.

4.  Kwan Chun-chow and Lo Wing-kwong, both named in the Charge 1 as the victims, were workers present at the fuel station at the material time, and clearly were keeping the money robbed for the seller.

5.  For the robbery under Charge 1, which took place at around 4:52 a.m. on 11 January 2020, the prosecution says that a bunch of young people consisted of the following five persons: (1)  Lee Yi-hei, nickname ‘Fat Sam’; (2) Cheng Long-hei, nickname ‘Ah Hei’, and I shall refer to these two persons by their nicknames hereinafter for easy reference; (3)  PW1, Chong Chin-tong; (4)  D1, Wong Sze-sing; and (5), a fifth member who is simply described in the charge as “a person unknown”.

6.  The robbery under Charge 2 took place less than 24 hours later, the prosecution says that the following four persons were involved:  namely, (1)  Fat Sam; (2) Ah Hei; (3)  PW2, Chau Ching-lam; and (4)  D2, So Cheuk-lam.

Issues

7.  Most of the facts in the present case are actually not in dispute, as can be seen in the Admitted Facts and marked as P9.  The only issue is whether the two defendants, meaning D1 in respect of Charge 1 and D2 in respect of Charge 2, were parties to the robbery under the respective charges.

Admitted Facts

8.  I will only deal with the more important parts.  Firstly, in paragraphs 11 and 12 of the Admitted Facts it is admitted that the fuel station in question was indeed robbed at the time mentioned earlier.  And it is also admitted that at the material time Kwan Chun-chow and Lo Wing-kwong (who was involved only in Charge 1)  were present.  Indeed, the robbery itself was captured by the CCTV camera installed at the fuel station.  The video footages were produced as part of the Admitted Facts and marked respectively as P6 (for Charge 1)  and P7 (for the robbery under Charge 2).

9.  The two defendants’ arrests, D2, on 20 February 2020 and the D1 on 10 March 2020, were likewise admitted, as were the identification parades they were put on in which D1 was identified by PW1 and D2 by PW2.

10.  Paragraphs 7 and 8 of the Admitted Facts deal with the video recorded interview the police had with D1, which recording was produced as Exhibit P3, transcript P3A and the certified translation P3B.

11.  Paragraphs 15 and 16 of the Admitted Facts about the defendants’ previous records.  According to these, D1 has a conviction for common assault and one for criminal damage, both entered in 2016, whereas D2 has a clear record.

Oral Evidence

12.  In addition to the Admitted Facts and the exhibits produced thereunder, the prosecution has called two prosecution witnesses, PW1 and PW2.  As their evidence forms the bedrock of the prosecution’s case against each of the two defendants, I think it is necessary to go into the evidence in some details.

13.  I shall sum-up what PW1 has said in evidence first.  According to his evidence, he met D1 for the first time in the middle or end of 2019 at a bar in Tai Po. They met thereafter once or twice every month.  On 11 January 2020, shortly after midnight, he was on his way to a friend’s home when he got a phone call from someone asking him to help with a robbery.  The message he got was that as the venue was an illegal fuel station, nobody would report the matter to the police.  When asked if it was okay with him, he agreed to take part.

14.  He set off from Tai Po Market and went to Tai Yuen Estate where he met up with four others; these included D1.  They boarded a taxi afterwards.  D1 sat beside the driver at the front, whereas the four of them sat behind.  At the taxi, D1 told the driver to go to roundabout number 5 of the Kwai Chung Container Terminal.

15.  When they arrived at the said roundabout, three of them got off.  D1 instructed them to walk forward where they should see an illegal fuel station. The three persons who got off included PW1 himself, Ah Hei, and as it became clear later, Fat Sam.  PW1 said D1 made it clear that they were to go over to the fuel station to conduct a robbery.  After they went over to the side of the fuel station, they waited for a while as there were vehicles inside.  When these vehicles were gone, the three of them then entered.  They drew their knives and told the people inside that it was a robbery.  All three of them were armed in fact with a knife.

16.  Two men inside, whom we know from the Admitted Facts were Kwan Chun-chow and Lo Wing-kwong, were startled.  The three of them asked the two victims for money and the latter took money out from the drawer.  According to PW1, either Fat Sam or Ah Hei took the money.  And having taken the money they then ran back to the taxi.

17.  Inside the taxi, D1, with the other person, were sitting of course with the driver.  After they got back to the taxi, they gave the bag of money taken from the fuel station to D1.  D1 counted and after that he asked the driver to set off.

18.  The group went somewhere in Shatin where, having alighted, they then split the money equally amongst the five of them.  PW1 said he believed he got HK$500 to HK$1,000.  After each getting his share, all five of them then took another taxi to go back to Tai Po Market.  PW1 said he got off at Yan Hing Street and then the group parted company.

19.  Under cross-examination a few matters were put to him.  The first matter relates to the previous convictions for robbery PW1 had.  These included two robberies at the Hankow Centre in November and December respectively of 2019; a robbery at the Tai Po Game Centre, and two robberies at a clubhouse in Yuen Chau Tsai, Tai Po, both taking place in December 2019.  PW1 admitted to these and he also agreed with defence counsel that these robberies were committed by him with other people, D1 not included.

20.  The second matter taken up with PW1 was that he and PW2, Chau Ching-lam had “got together to give evidence against certain people to get a discount in sentencing”.   PW1 agreed to that suggestion.  However, when it was put to him by the defence that he had deliberately not given evidence against other people in the gang, he disagreed.  He said the case had been so long ago and he was arrested long after that; he was not so familiar with some of the other people who committed the crime, but he knew D1 for long time.  He said he could clearly tell D1’s name and he is also familiar with D1’s features, and that is why at the ID parade he could identify D1 and say more about him in his statement to the police.

21.  The third subject matter taken up by defence in cross-examination of PW1 was that he and PW2 decided to make the person he testified against the mastermind.  PW1 adamantly denied this.

22.  The fourth matter the defence went into is the failure on PW1’s part to pick out D2 in another identification parade held by the police.  PW1 agreed that he had not been able to identify D2.  He agreed also that he had known D2 for a longer period than he knew D1.  When asked by the court about this, namely his failure to identify D2 at the ID parade, PW1’s explanation is that as everyone in the ID parade was wearing a mask and a shower cap, as a result of which only their eyes were seen, that made it very hard for him to identify anyone in the parade as someone he knew.  And he added that in relation to D1, he had a deeper impression because, among other things, D1 was remanded with him in Pik Uk.

23.  In fact, in a number of questions put to PW1 by the defence, it was revealed that in fact PW1 had told the police quite clearly in his statement that the fifth person, the one named as the unknown person in the amended charge, was So Cheuk-lam, Melody, namely D2.  And it was suggested to PW1 by the defence that PW1 had told the police in his statement that he is aware of a loan made to D2 (namely Melody)  by D1 in the sum of HK$10,000.

24.  The fifth matter which the defence had gone into is about D1.  It was put to PW1 that he knew full well that D1 was not involved in the first robbery, and that D1 was only sitting there in the taxi waiting.  PW1 disagreed vehemently with this.  He said D1 did participate.  D1 had, he used the word, “commanded us to go over there”.  Also D1 acted as a lookout in the course of the robbery.  And of course D1, he said, also provided them with the means of transportation.

25.  Questions had also been asked about the knives being used, meaning who provided PW1, Ah Hei and Fat Sam the knives used.  PW1’s answer was that as it happened so long ago, he could not really remember.  All that he could say is that the knives were provided to them by one of those in the taxi.  That is the long and short of PW1’s evidence.

26.  I turn now to the evidence of PW2, Chau Ching-lam.  According to PW2, he was in a basketball field in Tai Yuen Estate with Fat Sam at about 10 pm on 11 January 2020.  Fat Sam received a phone call, he said, from D2 at around that time asking him to take part in a robbery.  After Fat Sam finished the call, Fat Sam asked PW2 if he would come along.  PW2 agrees and after that they met up with D2 at the same basketball field.

27.  He said before this meeting, he had known D2 for some time.  They first met in fact in the same basketball field and between their first meeting and the meeting they had in the evening of 11 January, they had met a total of five to six times.

28.  When PW2 met D2, he also met up with Ah Hei.  The four of them then took a taxi to a place called the Mah Wong Game Centre or Arcade in Sheung Shui.  It was D2 who gave the driver the direction to go there.  Although he did not say it in so many words, the clear intent was for them to conduct a robbery there at the Game Centre because, according to PW2 in the witness-box, after going to the Game Centre in Sheung Shui, they found that there were police officers in the vicinity and so they switched to another place for the robbery.  And this turned out to be the same fuel station on Ching Cheung Road near the Kwai Chung Container Terminal.

29.  They went there on another taxi and after they got there, D2 stayed in the taxi, leaving the three of them, meaning PW2, Fat Sam and Ah Hei, to commit the robbery.  D2 told them on the taxi to go forward to an oil tanker vehicle where there should be a counter below an umbrella shelter.  The three of them were all armed with beef knives.  He said these knives were provided to them by one of the four, but it was not D2.  In fact, he said D2 probably did not see their knives as they had it all tucked in.

30.  When they arrived at the fuel station, they took out their knives, but he said there was actually unnecessary for them to hold the knives against the person there.  The person there obviously knew that it was a robbery as “a bunch of people did a robbery there the day before”.  He said it was either Fat Sam or Ah Hei who got the money from the fuel station.  And after that, they went back to the taxi where D2 was still waiting.  They passed the money they robbed to D2 and it was split up equally whilst they were on the taxi.  PW2 said he received about HK$500 as his share.  After that, D2 told the taxi driver to return to Tai Po Market where they alighted.  He then left with Fat Sam.  He and Fat Sam discarded their knives at a refuse point in the area.

31.  And at the end of his examination-in-chief, PW2 also told the court that he was involved in three other robberies.  He had been charged with them and he pleaded guilty to two of these three other robberies and the current Charge 2, and he is waiting to be sentenced.

32.  In cross-examination, PW2 confirmed that he did not pick D1 out in the ID parade he was asked to attend.  His explanation was that that is because they were not involved in the same case, meaning, I take it, the same robbery. PW2 told the court, under cross-examination that after his arrest he had in fact been kept in the same place together with PW1.  But he said it was only for a short period of time, that is between 19 February to the end of March 2020.

33.  The defence put to PW2 that he and PW1 decided to identify one person in each of the two robberies in order to get a discount.  PW2 agreed with that suggestion.  That aside, it was put to PW2 that, on top of the robberies, he had also been involved in dangerous drugs, to which PW2 freely admitted. However, when it was further put by the defence to him that he was an active drug trafficker in the years of 2019 to 2020, PW2, having been advised by the court of his right, decided to exercise it and remained silent to that question.

34.  In addition, it was suggested by the defence that PW2 had constant arguments with D2 before the robbery under the 2^nd charge took place.  PW2 disagreed and added firmly that D2 was on the taxi.

35.  Defence also put to PW2 that his evidence about D2 giving a briefing and then pointing at the place to rob was not set out in PW2’s statement to the police.  PW2 in a way agreed because he answered by saying this: “Because such details were not touched upon by the question from the police”.  Defence then put to him that the statement he gave to the police was a detailed one, consisting of over five pages, if not more.  And it was suggested by the defence that PW2 was making it all up about the 2^nd defendant’s role.  To this, PW2 strong disagreed.

36.  Lastly, PW2 was asked by the defence if he was a good friend of D2.  In answer, PW2 said “not really”.  This I shall come back to later.

D1’s video recorded interview

37.  I turn next to the video interview D1 had with the police.  It is a mixed statement in that whilst D1 had denied to have been a party to any robbery, he has admitted to a number of things, including the following matters:

(1)  D1 admitted that he got a call from a woman at 3:30 a.m. 11 January 2020 in which he was asked to accompany her to go out to do something so that she could repay D1 for a loan of HK$15,000 she borrowed from D1 the day before.

(2)  D1 had known this woman for a long time.

(3)  Because he was worried that the woman would not have the money to repay him otherwise, he immediately went out.

(4)  D1 then went downstairs from his home at Kwong Fuk Estate, Tai Po at around 4:00 a.m.

(5)  The group arrived there at his place at around 4:30 a.m. by taxi. There were on board Fat Sam, Ah Hei, PW1 and a fourth person, whom we now know was actually D2 according to the defence in cross-examination of PW1.

(6)  D1 had only got to know PW1, whom he called Ah Tong, a little better in the morning in question. Before that, they did not really know each other, although D1 knew PW1’s father.

(7)  After that, they went to Kwai Chung by taxi. D1 sat at the front, whereas the other four sat at the back.

(8)  Before going to Kwai Chung, D1 said he had asked where they were going but D2 pointed at the driver, a gesture which D1 took to mean that they should not speak in the driver’s presence.

(9)  After going to the Kwai Chung Container Terminal, the taxi went round a big circle, which I take to mean a roundabout, and stopped under a bridge. Fat Sam paid for the cab fare.

(10)  Then they walked to the downstairs, to use the words in the video recorded interview, of a factory, where they changed to another taxi.

(11)  The taxi went past two roundabouts and stopped.

(12)  PW1, Fat Sam and Ah Hei then alighted. D2 told D1 to wait with her at the taxi.

(13)  About 5 to 10 minutes later, PW1, Fat Sam and Ah Hei ran back. Fat Sam was carrying a silvery-colour paper bag.

(14)  There were a lot of coins and banknotes in the bag.

(15)  One of the four sitting at the rear told the driver to take them to Tai Wai.

(16)  On the way, Fat Sam counted the money and said there were about HK$2,000.

(17)  They alighted after the taxi arrived at Sun Chui Estate in Tai Wai. Fat Sam paid the fare with the money in the bag.

(18)  All five of them went to McDonald’s for drinks and then some of them went to the 7-Eleven Convenience Store for cigarettes.

(19)  It was about 5:05 a.m.

(20)  After that, they sat on a bench where Fat Sam counted the money again. When Fat Sam finished, they split the money, each of them, meaning PW1, Fat Sam, Ah Hei and D2, got HK$500. After D2 got her HK$500, she passed it to D1 as part of the repayment.

(21)  They then took another taxi to go back to Tai Po for Chinese tea.

(22)  Although D1 believed the money were proceeds of robbery, he took it because D2 said it was for repayment of his loan.

(23)  When D1 was shown some pictures, Exhibit P3(g), he identified in the pictures PW1, Fat Sam and Ah Hei.

(24)  And lastly, D1 said he had been to the fuel station before when he was working as a delivery vehicle attendant. The vehicle went there to tank up.

Analysis

38.  As one can see from what I have set out hereinbefore, the whole case stands or falls with the evidence of, for Charge 1, PW1; and for Charge 2, PW2.  And that is no doubt why the whole of the defence submission is devoted to this one subject.  However, before go into the points made defence counsel in his submission, let me make a few points clear first:

(1)  Although the two charges were heard together, they indeed were joined together on the same charge sheet, each will have, of course, to be considered separately. Likewise, the evidence against each defendant will have to be considered separately. That one defendant may be guilty does not mean that the other is.

(2)  It is admitted that D2 has a clear record. And in the present case that means that she would have a lower tendency to commit any offence. She has chosen not to testify, which is of course her right, and obviously, no adverse inference of any kind is to be drawn against her.

(3)  Indeed, I should also add this. In considering the case against D2 on Charge 2, which is the only charge she is faced with, I shall, except for one matter, completely ignore what is said about her in relation to the first robbery, ie the robbery under the Charge 1.

39.  Turning now to the submissions made by the defence, a number of points have been made in their written submissions.  But I am not going to deal with them all.  I shall concentrate on what I consider to be the more salient points made.  The first point made by defence is that as PW1 and PW2 were both involved, to use their words, “experienced in a number of robberies”, there is no reason why D1 and/or D2 should take the lead in deciding what premises was to robbed. In my view, this really depends on the circumstances of the case.  To use the case of D1 as an example, given that he had, according to his video recorded interview, been to the fuel station before, there is nothing unreasonable for him to take the lead in the first robbery.

40.  The same applies to D2.  On the evidence of PW1, D2 was there on the taxi when the five of them went for the robbery under Charge 1.  Obviously, D2 is not charged with that robbery and, as I have said before, I am not going to take any account of what is said there about D2 as evidence against her.  But the fact that D2 was present the night before at the scene, is something which I should take into account when considering the point made by the defence in this connection.  D2, having in fact been there the night before, what is being unreasonable about her giving the direction for the robbery under Charge 2?

41.  The second point made by the defence is that PW1 and PW2 are both untruthful as they had deliberately chosen to identify only one defendant (in PW1’s case, D1, and in PW2’s case, D2).  It was said that PW1 and PW2 did this so that they could each reap the benefit of testifying as an accomplice witness.  Having considered the point with care, I do not think it holds water at all.  In my view, even if PW1 were to identify both D1 and D2 when he attended the ID parades in August 2021, I cannot see why PW2 would be deprived of his opportunity to appear as a prosecution witness for Charge 2.  After all, PW1 was not there when the robbery under Charge 2 was committed.

42.  The third argument raised by the defence is this.  It is said that in view of the fact that PW1 had admittedly known D2 for some time (in fact, it was D2’s brother who introduced D1 to PW1), (1)  it is unreasonable for PW1 not to have been able to identify D2 in the ID parade, and (2)  not to mention D2 in his examination-in-chief.

43.  In my view, PW1’s explanation for his inability to pick D2 out in the parade is perfectly reasonable.  With everyone in the parade wearing a shower cap and a face mask, and that is not to mention the blanket used to cover their legs (as one could see from the ID parade book), I can easily see how difficult it must be for PW1, or anyone else for that purpose, to identify D2.  In fact, one must also bear in mind that according to PW1, while she knew D2, he did not actually know her that well.  As to the latter point, my view is that it has more to do with the way prosecuting counsel asked his questions when examining PW1 in chief.  As far as I can see, PW1 did not have any hesitation when answering questions put to him by the defence about D2’s part in cross-examination.  As a matter of fact, I would have thought that if PW1 was indeed trying to leave D2 out, he would not have mentioned D2 at all when giving his statement to the police.  But we know as a fact that when PW1 gave his statement to police he had, to quote from the defendant’s submissions, “made extensive references to D2 in his statement”.

44.  It also applies to the defence attacks on PW2.  It was suggested by the defence that there is animosity between him and D2, because PW2 said “Not really”, when asked in cross-examination if they were good friends.  I cannot accept that.  I cannot see how that answer could have been seen as a sign of animosity between the two.  It is difficult in fact to see how PW2’s relationship with D1 would have made him a closer friend to D2.  And I also do not see any force in the other suggestions made by the defence which included that PW2 was not telling the truth when he said PW1 had not told him about D2’s involvement in the first offence.

45.  On the other hand, I agree with the defence suggestion that special care should be taken when the court is assessing the evidence of accomplices, as they may have their own axes to grind, so to speak.  And that is exactly what I have done in this case. 

46.  Having looked at the evidence of PW1 and PW2 with great care, I am satisfied that both PW1 and PW2 are credible and reliable witnesses.  They answered all the questions put to them by both the prosecution and the defence in a straightforward and unreserved manner.  There is no inherent weakness in their evidence and I do not see any sign of embellishment or exaggeration in the answers they gave.  I believe they are telling the court the truth and I have no hesitation in giving full weight to their evidence.

47.  On the other hand, I have grave difficulty in accepting what D1 has said about his part in the first robbery.  Apart from the fact that it is made out of court and hence had not been tested under cross-examination, I cannot imagine why D2 would have wanted to bring D1 along if he was not a party to the crime.  If all that D2 had in mind was to repay D1 with what she would manage to get from the robbery, she could have done that any time afterwards easily. There is no reason why D2 would have wanted to let D1 know about this robbery at all.  In short, having considered the contents of D1’s video recorded interview with care, I reject his answers which suggest that he was a mere bystander or that he was not in any way involved in the first robbery.

48.  The fact that I do not believe what D1 has said in his video interview about him not being a party to the robbery does not mean that he is guilty thereby of the offence.  The burden of proof is of course always on the prosecution.  It is the prosecution who has to prove their case beyond a reasonable doubt.  In this case, having considered the evidence against both D1 & D2, I am satisfied so that I am sure that D1 is guilty as charged under the amended 1^st charge.  As for D2, notwithstanding her clear record, I am also satisfied so that I am sure on the evidence before me that she is guilty as charged under the 2^nd charge.