HKSAR v. CHEUNG TSZ LUNG AND OTHERS

DCCC 244/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 244 OF 2013

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REASONS FOR VERDICT

1.  D1 and D2 plead not guilty to one charge of criminal damage, contrary to section 60 of the Crimes Ordinance, Chapter 200. D3 and D4 have pleaded guilty to the charge and given evidence on behalf of the prosecution.

Introduction

2.  Since July 2004 Madam Sung has been selling and delivering meal boxes to construction sites at Providence Bay in Tai Po.  In April 2009 three stalls, including Madam Sung’s, were operating in the same location.  A person called Yiu Kam Hin (“Ah Hin”) asked Madam Sung to pay protection fees promising her that if she did no more stalls would be able to sell meal boxes in the same location.  Madam Sung agreed and by June 2012 had paid over $40,000.

3.  In June 2012 Madam Sung refused to pay anything further because a fourth stall had started selling meal boxes in the same location.  Ah Hin said he would do something about this but nothing was done.  In mid October Ah Hin went to see Madam Sung to demand payment.  When Madam Sung still refused to pay Ah Hin said nothing could be discussed telling her they were now enemies. 

4.  The prosecution case in summary is that because of Madam Sung’s refusal to pay anymore protection fees a light goods vehicle (PA 6035) which she used for her work was damaged by the defendants on the morning of the 26 November 2012.  The damage was caused by D3 and D4 each using a crowbar, whilst D2 acted as the lookout and D1 as the getaway driver.  The getaway car (RE 7089) left at high speed with D2, D3 and D4 on board but was soon stopped by the police for speeding and the four defendants arrested.

5.  In summary the defence case as put in cross-examination is that D1 and D2 by chance met D3 and D4 on the morning of the 26 November when D1 said they were on the way to have breakfast.  D4 asked to join them for breakfast but said he first needed to collect some money in Tai Po.  D1 agreed to drive D3 and D4 to Tai Po first and then they would have breakfast together.  On arrival at Tai Po only D3 and D4 alighted from the car.  D1 and D2 remained on the car and were not party to the joint enterprise to cause criminal damage to the light goods vehicle PA 6035. 

Evidence

6.  The prosecution called two witnesses referred to in the prosecution opening, namely Madam Sung (PW1) and her ‘godson’ Mr Chan (PW2), who witnessed the events on the 26 November.  The remaining evidence was admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P17), including the stopping of RE 7089; the arrest of the four defendants; the seizure of the crowbars and surgical masks and gloves from the rear of RE 7089; sketches (exhibits P15, P16 & P18) and photographs (exhibit P19).  An extract from the Survey & Mapping Office of the Lands Department (exhibit P20) showing the location of the incident was also admitted by agreement during the cross-examination of Madam Sung by Mr Lau.  In addition the prosecution called D3 (PW12) and D4 (PW11) and tendered for cross-examination the current officer in charge of the case Inspector Ho Yiu Chung (PW10).

7.  The defendants elected to remain silent.  No witnesses were called on their behalf.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.  This does not establish their guilt.  On the other hand this means there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution. 

8.  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.

9.  I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

10.  The defence having called no evidence Mr Sujanani adopted the usual practice for prosecuting counsel not to make a closing speech.  I have carefully considered all the evidence and the submissions of Mr Wu and Mr Lau.  Unless otherwise stated I accept the evidence of the prosecution witnesses.

Criminal Damage

11.  I will first briefly summarise the circumstances of the criminal damage, there being no issue that the lights good vehicle PA 6035 was damaged.  The summary is taken from the evidence of Madam Sung.  At about 10:45/10:50 a.m. on the 26 November last year Madam Sung was going about her business of delivering meal boxes to the construction site at Phase III of Science Park.  The light goods vehicle PA 6035 used by Madam Sung was parked on Fo Chun Road. 

12.  Whilst Madam Sung was packing meal boxes at the rear of the light goods vehicle she heard noises coming from the front of the vehicle.  Madam Sung looked to the front of the vehicle and saw a South Asian male wearing a surgical mask and holding a crowbar which he used to smash the front of the vehicle. 

13.  Madam Sung rushed forward and asked why he was hitting the vehicle.  The South Asian male ignored Madam Sung and continued to hit the windscreen smashing the glass.  At this time Madam Sung saw a second South Asian male also wearing a surgical mask and using a crowbar to smash the vehicle.  The two South Asian males then ran away with Madam Sung giving chase. 

Protection fees

14.  As summarised in the introduction Madam Sung described how she paid protection fees between April 2009 and June 2012 to a person called Yiu Kam Hin and what happened when she refused to pay anymore.  I admitted this evidence as relevant to explain the events of the morning of the 26 November 2012.  I am however satisfiedthat the payment of protection fees is background evidence only there being no evidence that D1 or D2 were in any way connected with the demand or collection of protection fees from Madam Sung.  In this regard I also note that whilst Madam Sung was able to identify Yiu at an identification parade Inspector Ho (PW10) confirmed that after taking legal advice Yiu was not prosecuted for any offence relating to the 26 November. 

15.  I now turn to consider the evidence.

Accomplice evidence

16.  The prosecution rely on the oral evidence of Madam Sung (PW1), Mr Chan (PW2) and D3 and D4.  I will first deal with the evidence of D3 and D4, who pleaded guilty to the charge at the commencement of the trial.  Both D3 and D4 being accomplices I approach their evidence with caution.

D4

17.  D4 was the first accomplice to give evidence.  In summary D4 testified that on the 21 November 2012 he was drinking with D1, D2, D3 and a Pakistani friend called “Lo Fu Chai” who acted as an interpreter.  “Lo Fu Chai” said that D1 wanted the windscreen of a vehicle to be broken.  D2, D3 and D4 agreed to do this.  $5,000 was offered for each person who agreed to damage the windscreen.  In the evening of the 25 November there was another meeting between D1, D2, D3, D4 and “Lo Fu Chai” when they were told the windscreen was to be broken in the morning.

18.  On the morning of the 26 November D3 and D4 met D1 and D2 in Tsuen Wan.  D1 then drove D2, D3 and D4 to Tai Po district in a grey coloured Benz (RE 7089).  On arrival D1 pointed out a Hiace light goods vehicle (PA 6035) the windscreen of which they had to damage.  D1 thengave D3 and D4 each a pair of gloves, a mask and a blue crowbar after which D2, D3 and D4 all alighted from the vehicle.  In cross-examination by Mr Lau D4 said that D2 also wore a mask. 

19.  D3 and D4 then smashed the front of PA 6035 whilst D2 was standing with them.  In cross-examination by Mr Lau D4 said D2 was standing 20’ away.  After hitting the windscreen D3 and D4 started to run when D2 said “Go, go, go”.  The three defendants then ran to RE 7089 and got on the car, D4 placing the gloves and the crowbar in the car.  D1 then drove away at high speed.  The car was stopped by the police with nobody getting out before the car was stopped.

D3

20.  In summary D3 testified that on the evening of the 25 November 2012 D4 telephoned him saying in the morning there was some work to do breaking the window of a vehicle and arranged to meet with him at 9:30 a.m.  D4 told D3 he would be given $5,000.

21.  The next morning D3 met D4 as arranged at Shek Wai Kwok in Tsuen Wan.  D1 and D2 then approached and they all boarded a grey coloured private car (RE 7089).  D3 had seen D1 and D2 before when having dinner but did not know anything about them because he did not speak Chinese.  D1 then drove them to Tai Po.

22.  On arrival at what looked like a construction site D1 drove around and then pointed to a Hiace light goods vehicle (PA 6035), the window of which they had to damage.  D1 then gave D3 and D4 each a pair of gloves, a mask and a blue crowbar after which D2, D3 and D4 then got off the car.  In cross-examination by Mr Lau D3 said that D2 also wore a pair of gloves and a mask.  D1 then drove the car away and pointed to where he would pick them up.

23.  D3 and D4 then smashed PA 6035 whilst D2 was stood behind them.  In cross-examination by Mr Lau D3 said D2 was right behind them about 8’ away.  On seeing some people coming D2, D3 and D4 fled and ran to RE 7089.  D2 put the gloves; mask and crowbar in the back of the car as shown in photographs 4, 5 and 8, exhibit P19.  After D2, D3 and D4 boarded the car D1 drove away very fast.  The police intercepted the car with nobody getting out before the car was intercepted.

Consideration of the accomplice evidence

24.  In deciding whether I can accept the evidence of D3 and D4 I remind myself of the need to approach their evidence with caution.  Mr Wu and Mr Lau both cross-examined D3 and D4 on their non-prejudicial statements made respectively on the 8 and 7 November 2013, which statements were marked respectively as exhibits ‘B’ and ‘A’ for identification, the court exercising the power to call for the statements pursuant to section 14 of the Evidence Ordinance, Chapter 8. 

25.  Both statements make clear that the first request made to the prosecution was for D3 and D4 to be given immunity from prosecution in return for them giving evidence. The prosecution however did not grant immunity to either D3 or D4.  D3 and D4 nevertheless have pleaded guilty and given evidence in the hope of receiving a reduction in sentence in addition to the one third discount for pleading guilty.  I remind myself that when considering the truthfulness and reliability of D3 and D4 that I must bear in mind the possibility that each of them may be lying in order to obtain a sentence reduction (see HKSAR v Wong Lin Hung CACC 52/2011). 

26.  Mr Wu also makes the point that their desire to act as a witness for the prosecution was to give evidence against D1 and D2 but not against each other (see paragraph 9 of Mr Wu’s written submission).  Whether or not that was their original intention I note that in their respective witness statements they talk about the role of each other and in evidence they both testified about the role of each other and not limited to D1 and D2.  Nevertheless I take this into account in considering the reliability of their evidence.

Discrepancies

D3

27.  In evidence D3 said he was given the gloves, the mask and the crowbar when he was getting off the car whereas in his non-prejudicial statement he said they were given to him when he got on the car which is also inconsistent with the evidence of D4 (see paragraphs 12 (a) and 14 (d) of Mr Wu’s written submission and paragraph 7(f) of Mr Lau’s written submission).  Mr Lau also submits there is a discrepancy as to where D2, D3 and D4 got off and back on RE 7089.  In chief the evidence was not entirely clear D3 saying he got off and back on RE 7089 in the same place although his description sounded as though they were different places.  In his statement D3 said they got off and back on RE 7089 in the same place (see paragraph 7(b) of Mr Lau’s written submission). 

28.  In my view these differences are not material and do not cause me to doubt the evidence of D3 that he was given a pair of gloves, a mask and a crowbar by D1 and that he got back into the same car. 

D4

29.  Various discrepancies were shown to exist as between the statement and the testimony of D4, which discrepancies D4 was unable to explain saying he did not remember exactly or forgot. 

30.  In the statement D4 mentions only meeting D1 in the evening of the 21 November and that later he told D3 who was willing to help.  No mention is made of D2, D3 and “Lo Fu Chai” being present.  Neither is there mention of a meeting on the 25 November only telephone contact with D1 through “Lo Fu Chai” (see paragraphs 13 and 14 (c) of Mr Wu’s written submission).  I am satisfied these are material differences as they relate to D2.  There being no mention in the statement of D2 on the 21 or 25 November and considering D3’s testimony that his first knowledge of the matter was a telephone call from D4 on the evening of the 25 November, I am satisfied I cannot place reliance on D4’s evidence that a meeting took place on either the 21 or 25 November in which D2 and D3 were in attendance.  However I am satisfied I can place reliance on D4’s evidence that there was a meeting on the 21 November at which D1 was present when D4 was asked to smash the windscreen of a vehicle.

31.  Other discrepancies related to when D4 said he got off and back on RE 7089 and whether D4 noticed if a lady was chasing him (see paragraph 7(b) and (d) of Mr Lau’s written submission).  Mr Lau also refers to a discrepancy as to which seat D4 sat in as between his evidence and the sketch (exhibit P18) drawn by the police (see paragraph 7(c) of Mr Lau’s written submission).

32.  These discrepancies in my view are again not material and do not cause me to doubt D4’s evidence that he was driven to the location by D1; that he got back into the same car and was sitting in the back of the car.   

33.  Mr Lau also relies on discrepancies in the evidence as to whether D3 or D4 could speak Punti (see paragraphs 7(a), 8(b) and (c), 23 and 25 of Mr Lau’s written submission).  In cross-examination when asked by Mr Wu if he spoke Punti as of the 26 November 2012 D4 replied, “Chinese, No”.  In answer to the court D4 said that D3 did not speak any Cantonese/Punti dialect and that they did not communicate with D1 and D2 on the morning of the 26 November.  In evidence-in-chief D3 said he could not speak Chinese.  In cross-examination by Mr Lau D3 said that D4 did not know Punti and communicated with gestures.  This evidence is in contrast to that of Madam Sung that one of the South Asian males said in Punti dialect, “This time your car is hit, next time it is not as simple as hitting your car be careful.”

34.  I do not accept that neither D3 nor D4 spoke some Chinese for I find highly unlikely that both D3 and D4 were unable to communicate with D1 and D2.  I accept Madam Sung’s evidence that she heard one of the South Asian males threaten her in Punti.  I am quite satisfied that if the Chinese male had said the threatening words Madam Sung would have told the court this and not just that the Chinese male said “Run fast, run fast”.  Whilst the actual words D4 attributes to D2 “Go, go, go” are different to what Madam Sung attributed the Chinese male as saying the meaning is the same.  Also in this regard I note D1’s case as put in cross-examination to both D3 and D4, although denied by D4, is that D4 did communicate with D1. 

35.  Submissions have also been made that there are discrepancies as to whether the engine of RE 7089 was on; who arrived at Shek Wai Kok first; whether D1 had driven around before they alighted (see paragraphs 12(b) and 14(a) and (b) of Mr Wu’s written submission) and when D3 first met D1 and D2 (see paragraph 7(e) of Mr Lau’s written submission).  In considering my verdict I have again gone through the evidence.  I remain of the view expressed in court that there are no such discrepancies in the evidence.  Even if there can be said to be some difference these are in no way material whereby I would have reason to doubt the evidence of D3 and D4.

36.  Notwithstanding there are inconsistencies in the evidence of D3 and D4; that I place no reliance on D4’s evidence D2 and D3 also attended the meeting when he was asked to smash the window of a vehicle and that I doubt their evidence that both of them could not speak any Chinese, having carefully considered their evidence I am satisfied I can rely on their evidence as to how they each say they became involved in smashing the windscreen of PA 6035 and what happened on the morning of the 26 November.  I am satisfied so I am sure they are both telling the truth about these events.    

37.  In reaching this finding I have carefully considered the submissions of Mr Wu and Mr Lau, in particular that from April to June this year D3 and D4 shared the same cell while on remand at Lai Chi Kok Centre and therefore must have discussed about what happened on the 26 November (see paragraph 8 of Mr Wu’s written submission).  Whilst both D3 and D4 say they never discussed what happened I find this unlikely. 

38.  This does not however cause me to doubt they have told the truth about what happened.  I accept their evidence that they independently decided to plead guilty, not knowing the other was to plead guilty until they were in court on the first day of trial (25 November 2013) and independently decided to give evidence against D1 and D2.  The decisions to plead guilty and give evidence for the prosecution were made by D3 and D4 when they were no longer sharing the same cell but were in different prisons serving sentence imposed in July this year for a burglary they committed together.  Nothing said by Mr Wu and Mr Lau causes me to doubt that D3 and D4 are telling the truth about how they each became involved in smashing the windscreen of PA 6035 and what happened on the morning of the 26 November. 

Supporting evidence

39.  The evidence of D3 and D4 is not the only evidence implicating D1 and D2.  The evidence of Madam Sung (PW1) and Mr Chan (PW2) together with the circumstances of the arrest is evidence capable of implicating both D1 and D2. 

The evidence of Mr Chan (PW2)

40.  In summary Mr Chan testified that on the morning of the 26 November he went to visit Madam Sung to learn about the business.  Madam Sung treated Mr Chan as her “godson”.  While watching Madam Sung work Mr Chan saw a Chinese male bring along two foreigners who smashed the light goods vehicle PA 6035 with crowbars.  The Chinese male in Cantonese then told the foreigners to leave.  Madam Sung immediately called the police.  All three ran away together and got on board a private car which Mr Chan said in cross-examination left at high speed.

41.  I was not impressed with the evidence of Mr Chan.  I am not satisfied he saw everything he described in his testimony.  In cross-examination by Mr Lau he said he could see the car the three males got into from where he was standing by PA 6035 whereas Madam Sung agreed in answer to Mr Wu (in questions arising) that she could not see the car from PA 6035.

42.  Mr Chan agreed in cross-examination by Mr Lau that the three males never walked past him before they smashed PA 6035.  However in answer to the court Mr Chan contradicted this when he explained the three males approached from the rear of PA 6035 and did walk past him before smashing the vehicle.

43.  In answer to the court Mr Chan said he could not recall whether Madam Sung chased after the three males when quite clearly she did.  If Mr Chan witnessed all that happened then he could not have failed to see Madam Sung chase after the three males and that only after the car left did she then call the police.  Further I am also surprised that if Mr Chan witnessed the whole event he did nothing and just stood watching what happened and did not chase after the three men.  I do not find credible Mr Chan’s explanation in cross-examination by Mr Lau that he did not chase after them because he thought that calling the police was more effective.

44.  Clearly Mr Chan saw something for he was able to identify one of the foreigners (D3) at an identification parade.  He did however also make a wrong identification and was unable to identify the Chinese male.  After careful consideration I am satisfied that it would be unsafe to rely on the evidence of Mr Chan. 

The chase

45.  I now turn to consider the evidence of Madam Sung.  I have earlier set out the evidence of Madam Sung relating to the damaging of PA 6035 (see paragraphs 11-13).  After smashing the windscreen the two South Asian males then ran away with Madam Sung giving chase.  Upon reaching a corner Madam Sung saw a Chinese male on the pavement telling the two South Asian males to “Run fast, run fast”. In answer to the court Madam Sung said when she saw the Chinese male he was about 34’ from the front of PA 6035.  The Chinese male than ran together with the two South Asian males with Madam Sung continuing to chase after them.  During the chase one of the South Asian males in a very fierce manner pointed at Madam Sung and said in Punti dialect, “This time your car is hit, next time it is not as simple as hitting your car be careful.”

46.  After running about 100 meters Madam Sung saw a silver coloured private car registration number RE 7089.  As the two South Asian males and the Chinese male approached the car, the car moved forward.  Madam Sung saw one of the South Asian males board the car but could not see the other two males board the car as her view was obstructed by a light goods vehicle.  Madam Sung explained that after one had boarded the car she continued to chase forward by which time all of them had boarded the car because when she looked at the side of the road nobody was there anymore.  The private car left in high speed.  After writing down the registration number on the palm of her hand Madam Sung called the police.

Arrest

47.  The circumstances of the arrest have been admitted (see paragraphs 2-9 of the admitted facts, exhibit P17).  In summary at 10:53 the police were on mobile patrol on Chong San Road when RE 7089 overtook the police vehicle at a speed of 76 km/h in what was a 50km/h speed limit.  The police intercepted RE 7089.  D1 was driving with D2 in the front passenger seat and D3 and D4 sat in the rear. The police found two blue crowbars, two used surgical masks, a pack of new surgical masks and two gloves inside the rear of the car.    

Consideration of the evidence

48.  I accept the evidence of Madam Sung.  I find Madam Sung an honest and truthful witness who did not in any way try to embellish her evidence.  This is perhaps best exemplified by her evidence that she only saw one of the three men board RE 7089 and that her view of the other two was obstructed. 

49.  Although Madam Sung only saw one of the three get on board RE 7089 she continued to chase forward when she could no longer see the other two on the road.  Taking into account that within a very short time the police stopped RE 7089 with four persons on board, including the driver, I am satisfied so I am sure the only inference to draw is that the three persons Madam Sung saw running away were the three passengers who were in the car when the car was stopped by the police. 

50.  In considering Madam Sung’s evidence I notethere is a difference with the evidence of D3 and D4 as to whether RE 7089 was moving when they got on board the car.  Madam Sung says she saw the car move before one of the three got on board whereas D3 and D4 both said the car was stationary.  I do not find this difference material.  Whether or not RE 7089 moved before they got on board does not cause me to doubt that the three of them boarded RE 7089 which left at high speed and was a short while later intercepted by the police.

51.  I am satisfied so I am sure that by driving RE 7089 away at high speed the only inference to draw is that D1 knew that PA 6035 had been damaged and was therefore by being the getaway driver a party to a joint enterprise to damage PA 6035.  This evidence also lends support to the evidence of D3 and D4 that, inter alia, D1 was the driver and the one who pointed out PA 6035 as the vehicle to be damaged and gave the masks, gloves and crowbars to D3 and D4.

52.  D2 being one of the persons on board RE 7089 lends support to the evidence of D3 and D4 that, inter alia, D2 accompanied D3 and D4 whilst they smashed the windscreen of PA 6035.  Taking into account that D2 got out of RE 7089 together with D3 and D4, who were carrying crowbars given to them by D1 inside the car and accompanied D3 and D4 while they smashed the windscreen of PA 6035 after which he told them to run fast, I am satisfied so I am sure the only inference to draw is D2 was acting as a lookout while D3 and D4 smashed PA 6035 and was therefore party to a joint enterprise to damage PA 6035. 

53.  In reaching this finding I have carefully considered the submission of Mr Lau that at the highest D2 was merely present at the scene of the crime, Mr Lau emphasising that save for the words “Go, go, go” attributed to him by D4, according to both D3 and D4 nothing was said by D2 to either D3 or D4 on the journey to Tai Po or at any other time and D2 did not provide D3 or D4 with crowbars, gloves or masks (see paragraphs 18 - 20 and 23 – 27 of Mr Lau’s written submission).  I have no hesitation in rejecting this submission.  D2 had been with D1, D3 and D4 from the time they met at Shek Wai Kwok; D2 got out of the car together with D3 and D4 at a time when D3 and D4 were holding crowbars given to them in the car and D2 accompanied D3 and D4 when they smashed PA 6035 after which he ran together with D3 and D4 to the getaway car RE 7089.  This submission does not cause me to doubt the only inference to draw is that D2 was acting as a lookout while D3 and D4 smashed PA 6035 and was therefore party to a joint enterprise to damage PA 6035.

54.  I have also carefully considered the submission of Mr Lau that there are differences in the evidence as between D4 and Madam Sung as to where D2 was standing when he told D3 and D4 to run fast (see paragraphs 8(a) and 23 of Mr Lau’s written submission).  I find these differences more apparent than real.  Madam Sung was viewing the incident as a witness not a participant and only noticed the presence of the Chinese male when the two South Asian males began to run away. In what was clearly a fast moving incident I am not at all surprised there are such differences. 

55.  In reaching my verdict I have carefully considered everything said by Mr Wu and Mr Lau both individually and collectively.  Nothing said by Mr Wu or Mr Lau causes me to doubt the findings I have made.  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 have proved all the elements of the charge beyond reasonable doubt as against each defendant, the case of each defendant having been considered separately.  D1 and D2 are convicted of criminal damage.