HKSAR v. CHAN YEE LAP AND ANOTHER

DCCC 443/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 443 OF 2012

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REASONS FOR VERDICT
(charges 2, 4 and 5)

1.  Overview

During the Chinese New Year holidays of 2012 two premises situated close to each other Chong Fat Restaurant (the restaurant) and Ming Kee Recycle Shop (the recycle shop) were burgled.

2.  Stolen property

Cash of about HK$113,000, jewellery and a handbag were stolen from the restaurant. About 60 bags of copper and wires weighing approximately 5 tons, a trolley and coins of about $3,000 were stolen from the recycle shop.

3.  Stolen property found

On 29 January 2012, approximately five days or so after the above burglaries the 1^st defendant (D1) was seen by police officers to be moving bags of copper into a van from a shop in the same vicinity as the restaurant and recycle shop. In total 60 bags of copper were found that day. D1 was arrested.

4.  On the same day the proprietor of the recycle shop PW4 went to the shop and identified numerous bags of copper as belonging to her. 

5.  The following day a search by police officers of D1’s residence found some of the stolen property which was the jewellery and some coins contained in plastic bags printed with the restaurants logo as well as some Part I Poison drugs. 

6.  Thereafter D1 was remanded in custody for the above burglary charges at Lai Chi Kok Reception Centre (LCK). 

7.  On 6 February the 2^nd defendant (D2) visited D1 at LCK.  Their conversation and meeting was video recorded by CCTV but no audio recording was available.  Whilst there D1 spoke to D2 over the internal telephone, in the meantime D1 also showed D2 a map. 

8.  Later that afternoon police officers saw D2 and another male removing bags of copper from a rear lane to a van.  In total there were about 30 bags of copper.  On the same day PW4 of the recycle shop went to that location and identified many of the bags of copper and wires as property belonging to her and missing after the discovery of the burglary. 

9.  Charges

As a result of the above facts D1 was charged with four offences. They were :-

(i) burglary of the restaurant (Charge 1)

(ii) burglary of the recycle shop (charge 2)

(iii) Possession of Part 1 Poison (charge 3)

(iv) Aiding and Abetting D2 to handle the stolen bags of copper and wires belonging to PW4 (charge 5)

10.  D2 was charged with handling the stolen bags of copper and wires (charge 4).

11.  At this trial D1 pleaded guilty to charges 1, and 3 and not guilty to charges 2 and 5.  D2 pleaded not guilty to charge 4.

12.  Issues

Principally as concerned the bags of $5 coins, bags of copper and wires recovered and identified by PW4 as belonging to her, both D1 and D2 challenged PW4’s reliability and method of accurately identifying the properties as hers.

13.  The defendants submitted that PW4 was speculating that the properties were hers there were no clear identification of name or label to show that the property was PW4’s. 

14.  The prosecution was put to strict proof the $5 coins found in the plastic bags, copper and wires belonged to PW4.  D1 alleged the copper was purchased by him the therefore belonged to him.

15.  The issues that arose for consideration were the following:- 

(i) Are the 12 bags of 480 coins of HK$5 amounting to HK$2,400 (which were packed in transparent plastic bags with the logo of Chong Fat Restaurant) found in D1’s residence the property of PW4’s or PW1or 2’s (the restaurant’s)?

a) It was D1’s case that the bags of coins were stolen by him when he burgled the restaurant (charge 1) and were thus not the property of PW4’s.

b) It was PW4’s evidence that the coins in the plastic bags with the restaurant’s logo belonged to her as they were stolen from her recycle shop in the burglary. She exchanged notes for coins in the plastic bags with the restaurant about three days before she went on holiday on 24 January.

(ii) Are the 90 bags of copper and wires recovered on the 29 January and 6 February the property belonging to PW4?

a) It was D1’s case that he purchased the bags of copper from a male on 27 January 2012, they were therefore property belonging to him and not to PW4.

b) Two days later on 29 January that male had assisted him in transferring the bags of copper from the Castle Peak shop to the LGV. That male had fled when the police had arrived on 29 January at the Castle Peak shop.

c) It was PW4’s evidence that the copper and wires recovered belonged to her.

(iii) Did D2 have knowledge that the copper and wires were stolen properties?

a) D2’s case is that he had no knowledge the property was stolen as he had asked D1 several times whether the goods were stolen and D1 assured him they were not. D1 told D2 that if they were stolen they would have been seized by the police.

b) The prosecution’s case is that D2 had knowledge the goods were stolen. This is derived from his knowledge during the prison visit to D1 that D1 told him (D2), that he D1 was charged with burglary and the stolen properties were copper and wires.

16.  Background facts

The majority of the facts were admitted and/or not challenged by the defendants.

17.  During the Chinese New Year holidays between 22and 27 January 2012 a restaurant and a recycle shop were closed for business.  The restaurant had closed for business on 22 January.  The recycle shop had closed on 24 January.  These two premises were located near one another in Cheung Sha Wan.

18.  The burglaries and items stolen were reported to the police by the restaurant on 25 January 2012, the recycle shop on 29 January when the owners of the businesses returned to their premises.

19.  On 29 January, D1 together with an unknown male were seen by police officers to be moving scrap metal from a shop at No. 456 Castle Peak Road (the Castle Peak shop) also in the vicinity of the recycle shop into a light goods vehicle (LGV).  The police officers intercepted D1 and the driver of the LGV for enquiries.  At this juncture the unknown male fled. 

20.  Upon search, 29 bags of copper tubes and wires and 3 trolleys were found in the Castle Peak Shop whereas 31 bags of copper tubes and wires were found in LGV. 

21.  On the same day police officers took PW4 to the Castle Peak Shop to look at the property found.  PW4 identified numerous bags of copper and wires as the missing property stolen from her recycle shop. 

22.  In the evening on 30January 2012, with the execution of a Search Warrant, a house search was conducted at D1's residence at a rooftop, in Fa Yuen Street, Mongkok.

23.  Upon search, the following items were found in D1’s home :-

(i) 12 bags of 480 coins of HK$5 amounting to HK$2,400 (which were packed in transparent plastic bags with the logo of Chong Fat Restaurant and were subsequently positively identified by PW4 (note the recycle shop owner not the restaurant owner) as her missing properties,

(ii) 2 rings, 3 bangles and one wrist watch all of which was identified by PW2 as her missing property after the burglary of the restaurant,

(iii) coins amounting to HK$713 which included 10 bags of 789 in coins of 50 cents, 9 bags of 1,125 in $2 coins, 7 bags of 935 coins in $1 denominations and

(iv) 8 packets of pills of Part I poisons

24.  D1 was then arrested and remanded in Lai Chi Kok Reception Centre. 

25.  On 1^s February 2012, a police officer DSPC 51567 (PW19) between 11.55 and 13.45 hours at the Management Office, G/F, Block B, Wing Ning  Building 501-511 Shun Ning Road copied images captured from cameras 5, 6 and 7 of the CCTV system at the office on to 8 USB flash drives.  PW19 later copied the images to DVD compact discs and two discs are provided as Exhibit P12.  Still photographs were taken from Exhibit P12 and are produced as Exhibit P12A (no. 1 to 15).

26.  About 6 days later on 6 February the D2 and D1’s wife visited D1 at LCK.  The CCTV video recording of the interview room of LCK captured D1 in conversation with D2 over the phone and that D1 had shown a map (drawn on a prison issued booklet exhibit P6B) and pointed out a location to D2. 

27.  At around 2:45 p.m. on the same day, DSPC 16827 and his colleagues saw D2 and a male named KWOK Ka-fai (“KWOK”) removing bags of copper tubes and wires from the rear lane of the ground floor of No. 625B Fuk Wa Street, Cheung Sha Wan onto a light good vehicle with registration mark EV 703 (“EV 703”).  11 bags of copper tubes and wires were found in EV 703.  The rear lane was also in the vicinity of the recycle shop.

28.  The rear lane of the ground floor was covered by a wooden door which was about 2 metres high.  Behind that wooden door, 19 bags of copper tubes and wires were found thereat.  The bags of copper tubes and wires matched with the description of the stolen properties in the burglary case of the recycle shop.  Later that same day PW4 went to the rear lane and identified from there and EV 703 some of the bags of copper tubes and wires as her stolen properties. 

29.  D2 was then arrested. 

30.  In total 90 bags of copper tubes and wires were recovered from the shop, the LGV, EV 703 and the rear lane.  They weighed about 2,647 kg in total and their total value is about HK$172,055.

31.  The defendants were interviewed for the offences of burglary and handling stolen goods and made voluntary statements under caution.  D1’s VRI exhibited as P9.  D2’s VRI exhibited as P10 and P11.

32.  The witnesses

The prosecution called five witnesses. PW1, Mr So one of the proprietors of Chong Fat Restaurant (the restaurant in charge 1). PW2, Ms Lam the joint proprietor of the restaurant. PW4, Ms Heong one of the proprietors of the recycle shop. PW6, Mr Sung the person who lent the Castle Peak shop to D1. PW11 the police officer who arrested D1 at the Castle Peak shop.

33.  D1 and D2 elected not to give evidence or call any defence witnesses.  I drew no adverse inference from the defendants exercising their right to remain silent. 

34.  Proof

It is for the prosecution to prove their case beyond all reasonable doubt. No onus whatsoever lies upon the defendants. D1 pleaded guilty to charge 1. I drew no adverse inference from D1’s plea in arriving at my decision in the present charges. I have looked at the evidence presented in the charges 2 and 5 in isolation to charge 1 when deciding on the guilt of D1 (save when considering ownership of the $5 coins found in the restaurant’s logo plastic bags found in D1’s residence).

35.  The evidence

Both PW1 and PW2 said that it was their restaurant’s practice to keep $5, $2 and $1 coins in plastic bags. Some of their bags had their company’s logo Chong Fat printed on the bags while some bags contained no logos. There was some uniformity in how many coins were stored in each bag. It was their habit for example, to keep exclusively 40 of $5 coins in a bag.

36.  It was also the restaurant’s habit to exchange bags of coins with notes with a few owners or representatives of nearby shops or businesses.  Persons from those shops would go to the restaurant and exchange their notes with the coins in the bag.  When some of the bags were exchanged with coins some bags would contain the restaurant logo while some would not. 

37.  PW2 confirmed that the restaurant would exchange notes with coins with PW4 personally or her representatives of the recycle shop.  Usually PW4 would exchange between $2,200 to $2,400 of $5 or $2 coins. 

38.  PW6 was a tenant of the Castle Peak Shop from 2004 to 2011.  He stopped renting the shop as there was leakage in the shop. The landlord however asked him to repair the leak of the Castle Peak Shop he was therefore in possession of the key to the shop.  In late December 2011 PW6 upon D1’s request to him, he permitted D1 to use the shop to place his renovation and decoration tools.  D1 was not required to pay any rent.  D1 had been using the shop for approximately one month to the date of D1’s arrest. 

39.  PW4’s evidence

PW4 ran a recycling business with her husband. Since September 2011 she had been stocking up on copper with the intention of reselling it when the price rose at a later date. She estimated there were 50-60 bags of copper weighing about 5 tons. The value of the copper was roughly $230,000.

40.  On 24 January 2012 at about 10 am she locked up her shop leaving for Chinese New Year holidays.  She returned to her shop on 29 January at about 1.30 pm.  At that time she found that the lock on the roller shutter had been broken.  When she entered she found that the premises had been burgled. 

41.  She had found all the copper she had stocked, and cash in the form of coins kept in plastic bags that she exchanged with the restaurant of about $3,000 and three trolleys were missing. She made a report to the police who arrived at her shop at about 2.30 pm. 

42.  PW4 at the Castle Peak Shop

Shortly after the police arrived at her shop a police officer took her to a shop at No. 456 Castle Peak Road (the Castle Peak Shop).

43.  PW4 identified some of the bags of copper as hers.  She said it was part of the stock copper that she had left in her premises and was missing. 

44.  She identified copper on board of the LGV, on the pavement outside and inside of the Castle Peak Shop. She also identified one trolley on board of the LGV which was holding bags of copper as hers. 

45.  The rear lane at Fuk Wah Street

About a week later on 6 February at about 4 pm the police took PW4 to the rear lane at Fuk Wah Street. When she looked behind the wooden door she was able recognise the copper and grey coloured cables belonged to her. She was also able to recognise the copper inside of the van EV703 belonged to her.

46.  Submissions

Mr Paul Kwong solicitor and Mr Oliver Davies counsel for D1 and D2 respectively submitted that there was no identification marks on the bags or the copper showing PW4 owned the property.

47.  PW4’s evidence as to how she identified the bags of copper and the other property as belonging to her was unreliable.  The characteristics identified by PW4 were not unique or particular to PW4 or the goods.  It was submitted that the characteristics identified by PW4 could have been used by anyone else collecting copper and not only to PW4. 

48.  It was submitted that PW4 was also an unreliable witness as she had told the police she had lost about 50 to 60 bags of copper when 90 bags of copper were seized.  Further her estimate of the approximate weight of the copper that was stolen from her recycle shop was 5 tons when the actual weight of the copper seized was 2 tons. 

49.  How PW4 was able to identify her properties

The trolley

She was able to identify the trolley on the LGV as it had some ham strings circling the handle. The strings were at the same locations as her trolley.

50.  She agreed with Mr Paul Kwong solicitor for D1 that there was nothing unique about the ham strings circling the handle.

51.  The coins

On the same day PW4 was taken to the rear lane she was also taken to Cheung Sha Wan Police Station. At the police station she identified the coins in the plastic bags with the Chong Fat Restaurant logo were hers as she had exchanged notes for coins at the restaurant on or about 21 January. She said that the coins in the plastic bags that did not have the logo were not hers. She believed the coins were hers as all her coins, except the small amounts of 10 cents had gone missing. She kept them in her draw at the recycle shop and would only open them if she used the coins. She had purchased about 4-5 bags of coins. As there was about $200 per bag she did not open all the bags in one go.

52.  The bags of copper and the wires

The majority of the copper that was found was contained in 90 bags. The remainder were just the wires or tubing’s.

53.  PW4 was meticulously taken through photographs (exhibit P1 Book 1 and 2) of the copper and bags of copper by counsel of fiat Mr Philipp Swainston and asked if she was able to identify the property as belonging to her and why. 

54.  The copper seen in the photographs exhibited

Book 2 photos 1-62, contained the property which was found on 29 January. Photos 1-32 was the property inside the LGV. Photos 33-62 was the property found in the Castle Peak Shop and street. Book 1 at Tab B contained the photographs of the property found on the roadside outside 456 Castle Peak Road.

55.  Book 1 Tab F was the property found behind the wooden door in the rear lane.

56.  When PW4 was shown the property in the photos individually PW4 said she recognised many of the bags of copper were hers, some of those she recognised with certainty.  On some others she said she was unable to recognise them.

57.  I set out below part of PW4’s evidence explaining why she was able to identify the property found belonged to her and why she was not able to recognise some of the property. 

58.  Book 2 from photo 1-32 shows the copper seized from the LGV parked outside the Castle Peak Shop. 

59.  Of photo 4 in Book 2 PW4 said was certain that the bag and the copper contained inside were hers as she had a habit to place copper in the bag like that as if the copper was too long then part of it would protrude from the bag.  Also she remembered she had tied the strings fastening the bag.

60.  Of photo 6 and 31 she recognised the bag as this was a fibre retail rice from Welcome supermarket.  She collected these fibre bags from Welcome supermarket and used these bags to store the copper.  She recognised the bag and the copper inside the bag. She said she had collected copper randomly then she would put the copper she had collected into the bag until the bag was full then bundle it and put it inside the shop.

61.  Of photo 9, PW4 said it belonged to her.  She recognised it as it was her usual practice that she would not tie off the bag to close the edge of one corner and the opening of the other was not tied up so as to have some part of copper to protrude out of bag so when the bag was being moved she would be able to tell what kind of copper was contained in that particular bag.

62.  Of some of the bags she recognised because they were sewn up personally by her using a needle and nylon string.  She would use a needle to sew the opening and then use a string to tie it up.  PW4 brought along to court with her the needle and string she used to show the court.  The strings were nylon strings she collected from used papers stacks when people delivered newspapers from her.  The needle was about 6 inches in length and 5 mm wide.  A photo of the needle and string was exhibited as Photo 13A. 

63.  PW4 was sure she had sewn up the bags in photo 10, 13, 14, 16, 20, 22, 25 and 27.  Of photo 10, she recognised the bag of copper belonged to her because she would tie off the bag in that way and sew the bag’s opening shut.  She would put catties of copper in a bag.  She also recognised the copper inside.

64.  Of photo 13 PW4 was certain the bag of copper was hers.  PW4 pointing at the right hand side of the bag she said it was her usual practice to sew the bag from one end to other end.  Some bags would need more stitches than others.  Of some bags she just tied then up at the opening.

65.  Of Photo 14 she saw that the bag was sewn up and recognised the stitching on the bag.  Photo 16 she recalled she had sewn the opening off.  Of photo 22 she was absolutely sure she had sewn off the bag and left the copper protruding. 

66.  Of photo 17, she recognised the copper and also because it was kept in a larger whole bag without tying or sewing.

67.  In photo book 1 at tab 5

Of photo 5 there were 3 bags containing copper on a trolley outside the Castle Peak Shop on 29 January 2012. Of these bags PW4 said that she was 100% certain they belonged to her. She said the copper was collected on the last day of her work (24 January) before she went for her Chinese New Year holidays.

68.  Of the chequered nylon bag containing the black plastic bag she said the copper was originally placed inside a black plastic bag but as the black plastic bag was broken she put it inside of the red chequered bag. 

69.  For the multi-colour striped nylon bag she hurriedly put copper in it but could not remember if she had sewn it as it was her last day of work.  After she put the copper in the bags she stored them at one side of her shop.  She remembered those bags as she was the person who put the copper in those bags and moved the copper into her shop. 

70.  From inside the Castle Peak shop at Photo 13, she recognised the red chequered bag and the copper inside it as she had pulled the two handles together to tie them with string and without sewing the bag closed.  The orange bag next to it she recognised it as she had sewn the bag closed. 

71.  Of photo 12 (also Book 2 photo 40) she recognised the copper tubes all coiled up in the manner they were.  She had not tied it up but the customer had tied it up.  Also the black tubing (also in photo 39 of Book 2) she personally collected this black tubing from the customer and there was this yellow string running through all the tubing. 

72.  Of photo 14 she recognised all the loosened copper.  She said she had not used the blue bag to contain the copper but that maybe someone had taken the blue bag from her shop as there were a lot of those kinds of blue bags in the shop.  Of photo 15 she said that she was sure the red and white, the brown and white bag were hers.  Of photo 57 she remembered she had personally packed this red and white chequered bag with its copper. 

73.  As to the goods seized at the rear lane and in the van EV 703.  These were depicted in Book 1 tab F.  In the rear lane shown in photo 10 she recognised that the grey coloured cables on the ground were hers as she was the one who had collected the copper therefore she remembered. As to the other bags of copper they were tied similarly to the other bags she had tied and sewn up.  Inside EV703 she recognised from photos 3-5 the bags of copper belonged to her as she had handled those bags herself. 

74.  Of some other bags she identified as hers but were not sewn up she said the bag was tied as there was enough fabric to tie the bag.  It was generally for the smaller bags that the opening was sewn up. 

75.  PW4 said she had collected and packaged numerous bags of copper over the months and copper some of them she was unable to recognise or unable to recognise with certainty.  Further some of them had been collected by her staff members and were not dealt with her by therefore she would not be able to recognise those.

76.  Analysis

Was PW4’s manner of identifying the property as hers reliable?

77.  I accept there was an absence of any identification of name or label or anything identifying PW4 or the recycle shop as owner on the copper or the bags of copper.  As is detailed above PW4’s means of identification was by recognition of the bags by fabric, colour or brand (i.e. Welcome fabric rice bag), the method of packing the bags (i.e. copper protruding from the bag), the tying up of the bags, the sewing, the type of stitching and the various types of copper.  

78.  There was no evidence before me that sewing of bags with nylon string was common to other scrap metal collectors or common at all.  Nor could I take judicial knowledge of that fact.  I was satisfied that the sewing of bags with nylon string was unique to PW4’s keeping of the copper in those fabric bags.  Even if the sewing of bags was not unique, I was satisfied that PW4 was able to identify and recognise from the stitching on the bag and the style of the stitching that she herself had stitched the bags. 

79.  PW4 had said she herself had recognised many of the bags used to keep the copper as she handled them herself.  I accept these bags were not exclusive to her or her shop and they may be used by many others. For example the chequered and striped bags are common bags in Hong Kong.  However when looked at in the context as described above as to the means of identification in paragraph 77.  I was satisfied that she was recognising them as hers.

80.  Her memory of one of the bags of copper was particularly fresh in her mind.  This bag was found outside the Castle Peak Shop on 29 January.  She specifically remembered she had dealt with that particular bag on the day she left for her holiday.  She recalled clearly the customer had brought in the copper only in a black plastic bag so she packed it within another chequered bag.  

81.  After PW4 had finished giving her evidence she was shown the CCTV video (P12).  She had never seen it before.  The purpose of showing the video to her was to see if she could identify anything in the video. 

82.  From the video PW4 identified a person stealing her bags of copper by pushing the bags of copper (reference at Channel 5 at 00.03.51) along the rear alley from her shop as well as elsewhere in the video out at the front of the shop in the dark. 

83.  From the video similar bags of copper to the bags that were found on the 29 January and 6 February were seen.  The bags of copper matched and supported the descriptions PW4 had given earlier in her evidence.  Depicted in the video was a red, white and blue nylon chequered bag she had described earlier.  She also saw a white bag with copper protruding from the bag which she had earlier described as what she did with long copper.

84.  I was satisfied from PW4’s evidence that the CCTV video showed a person or persons stealing PW4’s copper.  I accept that the time as stated on the CCTV recording is not evidence of the date or time that the offence was committed.  The CCTV recording was real evidence tendered to show what it was that was recorded.  I was satisfied that the recording was authentic and copied from the original.  This recorded the stealing of PW4’s property.  What I was sure and was able to conclude however was that the stealing of the copper from PW4’s recycle shop occurred between 24 and 29 January. 

85.  PW4 had been collecting copper since September 2011 some five months before the goods were stolen.  The bags of copper were accumulated over at least five months.  They were not collected all in one go they were also collected by her staff members.  It was not an insubstantial amount.  They were stored in bags and placed in her recycle shop for sale at a later date. 

86.  It was not surprising that she was not able to recognise every single bag particularly as some of the bags were the same or were received at her recycle shop by her staff members. 

87.  It was also not unreasonable that PW4 was unable to say with more accuracy how many bags were stolen and the weight of the copper stolen.  She did not keep a log or record of the copper and the copper was collected unsystematically. 

88.  I found PW4 to be an honest and reliable witness.  Of many of the bags she was shown she said she was not able to say they were hers or was unable to recognise it as she could not remember.  If PW4 was eager to speculate that the bags of copper were hers she could have easily have said she was sure they were all hers but she did not. 

89.  I was satisfied that PW4 was reliable and accurate when she identified the bags of copper and wires were hers.  When all the evidence is looked at individually or moreover together I was satisfied beyond all reasonable doubt that she was correct and reliable in her identification of the copper and the bags of copper and the trolley. 

90.  On the evidence PW4 had lost numerous amounts of bags of copper on her estimate about 60 bags weighing about 5 tons.  What was found was 90 bags weighing 2 odd tons.  Her estimate of what she had lost was clearly incorrect.  I was satisfied that all the bags of copper and wires found belonged to PW4. 

91.  The coins

Unlike the bags of coppers and wires the coins and the coins in the plastic bags were common items to PW4 and PW1 and 2 (the restaurant proprietors). On the evidence before me and given that the D1 had admitted to burgling the restaurant I could not be sure beyond a reasonable doubt that the $5 coins found in D1’s residence that PW4 identified as her property was property belonging to the recycle shop and not to Chong Fat Restaurant. This however does not detract from the fact that I believe that stolen from PW4’s shop was cash of $3,000 in coins contained in Chong Fat restaurants plastic bags.

92.  Defence case

D1 elected not to give evidence. His case is derived entirely from the statements he made in the voluntary VRI. The statement is a wholly exculpatory statement. A wholly exculpatory out-of-court statement is inadmissible as to the facts stated therein. However, it may be evidence of the reaction of a defendant when accused of the offence.

93.  If however I am incorrect and the statement is a mixed statement then I shall consider that statement as evidence before the court. 

94.  D1’s defence as revealed in the VRI.  D1 said he did not burgle or steal the 30 bags of copper found on 29 January, the day of his arrest.  He said that a male came to sell him the copper two days before his arrest on the 27 January.  Two males “pushed” about 30 bags of copper to his Castle Peak Shop on three trolleys.  One of the males had asked him if he would buy the copper.  He agreed.  He did not however pay that male seller on the 27 January.  He told the seller he would only pay the seller if the seller helped him load the copper onto a vehicle for delivery for sale to another recycle shop.  The seller agreed and left all the 30 bags of copper with D1 at his Castle Peak Shop.  Two days later the seller returned to help him load the copper on the LGV on 29 January.  He paid the seller $20,000 for the copper and $500 as tea money for helping him load the goods.  However while they were loading the goods the police arrived at the scene and the male that sold him the copper fled the scene. 

95.  As to D1’s occupation D1 said he worked in the renovation, demolition and recycling business.  At counter 32, he gave a convoluted answer about where he worked he said “between Castle Peak Road and Wing Hong Street behind the rear lane at house number 456 where there was space to do a job, there is a staircase landing.”

96.  Analysis

D1’s answer as to his occupation is dubious. If there was any truth in a legitimate business of D1’s recycling business the evidence was that the Castle Peak Shop should have been his recycling shop. Why if D1 had the Castle Peak shop to store his recycled goods such as copper would he need to store copper at a hidden small location in the rear lane of Fuk Wah Street? The Castle Peak Shop was large enough to stock the copper found at the rear lane.

97.  D1 said that he had to wait to sell the copper as all the recycle shops were closed on the date he purchased the copper.  Why would anyone be looking to sell copper on a day when none of the other recycle shops were open?  Why was it so coincidentally and unbelievably D1’s shop which had only been there for one month, was open on that day and fortuitously someone had come to sell him a huge amount of copper. 

98.  D1 said at counter 70 the copper delivered to him on 27 January “was a huge amount.”  It is beyond belief and common business acumen that a seller of a huge amount of goods would sell and leave goods with a buyer without payment for the goods.  More so when the seller and the buyer were complete strangers to each other.  D1 said he had never seen nor met the seller until he was allegedly approached on the 27 January. 

99.  Over and above D1’s unrealistic and implausible condition of sale was that he would only buy the goods if the seller was to help him load the goods on to a van a few days later, of which he would be paid a further $500. 

100.  However even if the goods were purchased by D1 which I wholly reject, this is not evidence that these goods were not PW4’s stolen property. These bags of copper were not common household items like bags of rice or cans of coca cola.  They were large quantities of bags of scrap metal stored in a variety of bags of different colour, shape, size and material.  It is of no coincidence and is wholly unlikely that upon the disappearance of the same appearance, type and quantity of goods from PW4 that the same appearance, type and quantity would be allegedly sold to D1.  These bags of copper were clearly the property stolen from PW4’s even if D1 purchased the goods which I rejected. 

101.  I placed no weight on D1’s case that he ran a recycling business.  I accept D1 came into possession of the copper on 27 January 2012 but reject D1’s explanation that he purchased the copper. 

102.  Recent possession

D1 was found to be in possession of the bags of copper on 29 January 2012 when he was intercepted by the police. He admitted in the VRI that he was in possession of the goods on 27 January. PW4 found the goods were missing on 29 January.

103.  D1 was in recent possession of the copper very soon after the discovery of the burglary or more so before the burglary was discovered by PW4. 

104.  D1 had failed to give a credible or any explanation of the manner in which he came by the stolen property.  As D1 was in recent possession of the stolen goods I drew the irresistible inference that D1 committed the burglary of the recycle shop.

105.  The CCTV video images of a person or persons face stealing the bags of copper by wheeling them out on a trolley is not clear.  From the image of the person/s depicted, it cannot be ruled out that it is D1.  What is clear from the video is the person’s haircut, style and build. Having observed D1 in the dock it is very similar to his.  I am not drawing any conclusion from the CCTV images that it is D1 but as a result of the inference I have drawn above it is very likely to be D1 depicted in the video. 

106.  Conclusion of charge 2

The Castle Peak Shop and rear lane was in a close proximity to the recycle shop. Some of the copper was found on trolleys which was at least one of the methods used to steal the copper. There was every possibility that it was D1 who had wheeled the bags of copper on the trolleys to the Castle Peak Shop and the rear lane.

107.  D1’s recent possession of the bags of stolen copper without a credible explanation satisfied me beyond all reasonable doubt on all the evidence that the defendant had burgled the recycle shop.

108.  D1 is accordingly convicted of charge 2.

109.  Charge 5

The evidence in this charge is derived from the CCTV evidence of D1 showing D2 a sketch at the LCK and thereafter of the police intercepting D2 and the stolen property.

110.  It can be seen on the CCTV of the LCK that D1 is animated and seemingly does most of the talking to D2.  The statements made in D2’s VRI are not evidence for or against D1.  After showing D1 the sketch, D2 is found later that afternoon with the stolen property. 

111.  I had found that D1 had burgled the recycle shop. He had stolen the bags of copper and wires.  I was satisfied that the purpose of D1 showing D2 a map was to tell and show him where the stolen goods were kept.  In the afternoon after the prison visit D2 was seen to be removing the stolen goods from the rear lane to a van. 

112.  I was satisfied beyond all reasonable doubt on all the evidence before me that D1 had aided and abetted or counselled or procured D2 to assist him D1, in the removal of the 30 bags of stolen copper. 

113.  D1 is according convicted of charge 5. 

114.  Charge 4

115.  D2’s case

From the analysis above I was satisfied that the prosecution has proved that the property was the stolen property of PW4.

116.  D2’s case

D2 elected not to give evidence. His case is derived entirely from the statements he made in the voluntary VRI. The statement is a mixed statement. D2 suspected the bags of copper to be stolen property but said he was assured by D1 that they were not.

117.  The only issue is if the prosecution has satisfied me that D2 knew or believed the goods to be stolen goods. 

118.  D2’s VRI was a mixed statement.  He said the following.  D2 knew D1 had been arrested and was in custody for stealing scrap metal.  D2’s wife had repeatedly telephoned D2 asking him to visit D1.  D2 agreed to go to LCKRC with D2’s wife.  Inside LCKRC, D1 asked D2 to assist him to go to 42A Wing Hong Street to collect some scrap and deliver it to his wife in Mong Kok.  D2 asked D1 several times whether the goods were stolen goods and D1 assured him that they were not stolen.  D1 further told D2 that if the goods were stolen they would have been seized by the police.  D2 agreed to help D1 deliver the goods to nearby D2’s residence in Mong Kok where she would take control of the goods.  D2 only agreed to assist D1 only after he had received assurances that the goods were not stolen.  D1 told D2 the location of the goods and he drew a sketch in a prison notebook indicating the location.  D2 repeatedly told the police that they could verify the contents of the conversation by obtaining the audio and video recordings from LCK.  D2 did not receive any reward for assisting D1.  D2 had previously helped D1 move goods for D1’s construction and decoration business.

119.  Analysis

D2 moved the goods in broad daylight. Upon his arrest and in his VRI he explained to the police why he was moving the goods and that D1 had asked him to move the goods.

120.  D2 was cooperative at all times.  He answered all questions clearly and without hesitation.  He answers were detailed and precise and the accuracy of those statements was supported by the facts.  

121.  D2 readily admitted that he knew D1 had been arrested for stealing copper.  D2 provided the police with all the information which enabled them to investigate this case.  His version of events was supported by the video subsequently obtained from LCK as well as consistent with his verbal reply at the scene. 

122.  D2 repeatedly asked the police to obtain the video and audio recordings of the conversation in LCK.  I was satisfied that D2 was clearly under the impression that the conversation had been recorded and was fully confident that the recordings would support his version of events.  There is some suggestion that D2’s version of events may be true.

123.  The fact that D2 went to visit D1 in prison and knew that D1 was under arrest for an offence relating to scrap metal and that D1 wanted D2 to assist him to move scrap metal from a concealed location gives rise to any objective person that raises the suspicion that the property was the stolen property.

124.  I was satisfied that although D2 initially suspected it was stolen property that D1 was asking him to move but upon repeated assurance by D1 that it was not D2 with this belief went to assist D1. 

125.  In the circumstances the prosecution have not proved beyond a reasonable doubt that D2 knew or believed the property was stolen goods.  D2 is acquitted of charge 4.