HKSAR v. BALJIT SINGH

DCCC 105 & 789/2017(CONS)

[2018] HKDC 849

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 105 & 789 OF 2017 (CONSOLIDATED)

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Reasons for Verdict

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1.  At this stage, the defendant faces a single charge of robbery. At around 5 am on 13 October 2016, Jagdish Singh robbed the victim in Tai Nan Street, Sham Shui Po. He pulled from her shoulder bag she was carrying during a violent struggle. At the same time and on the other side of the street, the defendant was walking. Jagdish Singh, who became a prosecution witness, says the defendant was a lookout and a partner in the crime. The defendant denies this. He says Jagdish Singh acted alone. This is the issue to be decided.

Prosecution Case and Evidence

2.  PW1 was the victim.  She was walking home at around 5 am from the Co Co Duck Nightclub.  She noticed a man following her.  This was the defendant as later confirmed by a CCTV recording.  The defendant spoke on his mobile phone.  PW1 crossed the street.  The defendant remained on the other side from PW1.  Jagdish Singh, PW8 in the trial, was on the same side of the street that PW1 crossed onto.  He then ran over to her and robbed her of her bag.  He then crossed the street and ran away.

3.  The robbery was captured on CCTV at the scene, occurring in real time at around 505 to 506 am.  CCTV shows the presence of the defendant on the opposite side of the street at the time the robbery occurs. Following the robbery, the defendant crosses the street towards where the robbery occurred at the same time as PW8 runs across the street in the opposite direction.  PW8 then runs up the street and throws the victim’s bag under a parked truck.  The defendant runs eventually into No. 190 Tai Nan Street where he lives at the time.  

4.  The same camera showed the defendant and PW8 present in Tai Nan Street about one and a half hour later.  The defendant walks from 190 Tai Nan Street up the street to the junction.  PW8 walks to the truck and retrieves the bag stolen from PW1.  He then returns to No. 190 where he -- that is PW8 - is also living at the time.

5.  PW8 and the defendant were arrested at 190 Tai Nan Street.  A search of the rooftop of that premises recovered PW1’s bag which was hidden behind a red bucket on the rooftop.  Mobile phones were seized from the defendant and PW8, and the records of these phones were produced.  The records show that between 0431 hours and 0538 hours of that morning, there were 10 calls between the two phones.  In particular, at 4.37, the defendant’s phone called PW8, and at 5.04, shortly before the robbery, PW8’s phone called the defendant. 

6.  None of this evidence was in dispute.  What was disputed was the evidence of PW8, Jagdish Singh.  The evidence of Jagdish Singh was clear.  He robbed PW1.  There is no dispute as to this. He said he had lived with the defendant at 190 Tai Nan Street since March 2015.  About one hour before the robbery, he said he received a call from the defendant, saying the defendant was following a person to be robbed.  They were on Tai Nan Street.  He asked PW8 to join him.  After walking for two to three minutes, he saw the defendant following a woman.  They switched places by crossing the street.  He then robbed the woman.  She did not struggle.  The defendant kept a lookout for the police.  They then fled.

7.  PW8 said he hid the bag under a truck.  They then went to Maple Street Playground where the defendant took him to a flyover at that location.  The defendant showed him some clothes for him to change into. They then returned to Tai Nan Street, retrieved the bag, took it to the rooftop of their building to check it.  The defendant disposed of the bag by throwing it onto the rear staircase of the building.  The phone seized from him - that was PW8 - was the one used to speak to the defendant that the defendant told him to go to Maple Street, had thrown the bag into the truck as they ran away together, and he said this could be seen from the CCTV recording where they meet briefly in the middle of Tai Nan Street after PW8 committed the robbery.  

8.  In more detailed evidence, PW8 has said that he was at Maple Street Playground when he received the defendant’s call about finding a target.  He said they spoke continuously on the phone whilst he walked to Tai Nan Street.  This took some three minutes.

9.  PW8 admitted he lied in the record of interview he gave on 13 October 2016 when he denied being involved in the robbery.  PW8 had also said in the interview that he did not know the defendant well or for very long, that he had been sleeping rough and had only lived at Tai Nan Street for one month.  PW8’s DNA was also found on the victim’s clothing.

10.  As far as the defence case is concerned, the defendant did not give or call evidence, and no adverse inference can be drawn from this decision.  As part of the prosecution’s case, the defendant’s video-recorded interview was put into evidence.  The defendant relied on parts of the contents of that interview as his own defence.  The defendant admits that he was present and saw the robbery.  He watched it from across the street, from his door.  He did not know PW8 was going to rob the victim.  He told Jagdish Singh not to commit the robbery.  Jagdish Singh had gone to the defendant’s home and shown him some of the stolen property.  He said Jagdish Singh would always ring him.  He never rang Jagdish Singh on the phone.

11.  Aside from his explanation in the video-recorded interview, the defendant’s case was that PW8 was lying to the court and was not reliable, and that in the absence of this evidence, the evidence of PW8, then the remaining evidence of the prosecution case was not capable of charging, proving the charge to a criminal standard.  The burden of proof is on the prosecution at all times.  They must of course prove the charge to a criminal standard that is beyond reasonable doubt.  The charge is robbery.  Thus, the prosecution must prove a robbery took place, that is, where a person steals immediately before or at the time of doing so and in order to do so force is used on any person or any persons then and there put in fear of being subjected to force.  

12.  That PW8’s action constituted robbery is not disputed.  It is clearly proved on the undisputed evidence of PW1 and the CCTV recording.  Prosecution case is the defendant was present at the scene and aided and abetted the crime by acting as a lookout, this act of assistance being contemporaneous with the crime.  Naturally, the only evidence for this comes from PW8 as direct evidence.  PW8 is the direct perpetrator of the crime. As the perpetrator of that crime, he is a competent witness against the defendant.  He is as yet unsentenced for this offence he committed although clearly now admits his guilt.

13.  Clearly, a witness in this position must be viewed with a great deal of caution by a court.  He has a clear reason to give testimony unfavourable to the defendant in that it may assist him in his own sentencing.    

14.  Furthermore, in this case, PW8 denied committing this offence when first interviewed.  Thus, on his own admission, he must have lied to the police about this.  Defence say that having admitted lying in his interview, he cannot now be trusted as a witness of fact.  Furthermore, PW8 knew in his interview that the defendant had named him as the robber.  He therefore had another motive to lie to exact revenge upon the defendant for implicating him.

15.  The defence also say that other aspects of the evidence show that PW8’s credibility is poor and that he is unreliable. Firstly, PW8 said that he and the defendant spoke for some three minutes continuously while PW8 went to Tai Nan Street.  There is no similar conversation around that time to be found in the phone records.  PW8 said he had lived with the defendant at Tai Nan Street since March 2015, that he had told the Immigration Department of this.  However, when his Form 8 was updated in April 2016, No. 190 Tai Nan Street is not given as his address.  In his interview, PW8 also said he had not known the defendant long, had only lived at Tai Nan Street for one month.    

16.  It was said the CCTV recording also did not bear out PW8’s evidence, that the defendant had provided him with a white top and trousers when he changed his clothes up at the Maple Street Playground and near the flyover.  The CCTV recording appears to show PW8 wearing a dark top.

17.  Also, reference is made to other aspects of the CCTV recording on Tai Nan Street.  It is said that when PW8 recovers the handbag, he can be seen to shield it from where the defendant is standing at the junction.  This, it is said, was because he knew the defendant disapproved of this robbery.   

18.  Also, in another recording taken before the recovery of the bag, the defendant can be seen gesticulating to a person off camera.  It was put to PW8 this was because the defendant had seen PW8 and was angry with him for committing the robbery, and the defendant had earlier gone to Maple Street to find PW8 but he was not there.  

19.  It is also said the defendant’s actions at the time of the robbery do not appear to be those of a lookout.  He is walking, it is said, in an unobserved manner and appears surprised when the robbery occurs. He does not run off with PW8, only following on a few minutes later at a time when the victim is in fact still present, and there must be a resolution of course of this issue, and the first CCTV produced shows the defendant following the victim at 5.03 am at Tai Nan Street.  He is also present on CCTV when the robbery occurs and when the bag is recovered and also when the bag is recovered from underneath the vehicle.  So at all these important times in this robbery, the preparation, the actualisation and the recovery of the proceeds, the defendant is present. 

20.  I consider that the first video at 503 is capable of showing the defendant is following the victim.  He is still in her vicinity at 506 when PW8 commits the robbery.  The evidence from the recording is compelling evidence for a narrative that PW8 and the defendant were acting together.  It is further reinforced by the fact that when the bag is recovered, they also appear to act together.  PW8 collects the bag while the defendant goes up to view the junction.  It is clearly compatible with the version that the defendant was aiding PW8 by looking out for others, particularly police when he sees them.  Of course, this is what PW8 says in his evidence.

21.  I do note PW8’s position that he has a clear reason to implicate the defendant and also that his evidence must be taken and looked at with care and also that the court must be careful to see if there is any independent source of evidence which could provide assistance to determination of facts based on PW1’s evidence.

22.  I am aware that there are areas of PW8’s testimony that are not totally consistent with the known evidence.  His recollection of telephone calls is certainly flawed.  He did not talk continuously to the defendant.  However, they did communicate around the time of the assault.  They were close to each other at that time, namely, at 504 when PW8 calls the defendant’s phone.  At that time, they must have been very close together as this is only minutes prior to the robbery and at least one minute after the defendant seemed to be following the victim in Tai Nan Street.  

23.  After the robbery occurs, PW8 and the defendant appear to communicate at least separately, and the defendant has changed his clothes when they are seen again.  I note this is consistent with PW8’s evidence the defendant had prepared to change the clothes for him.  Evidently, PW8 was to return to 190 Tai Nan Street.  He could not do so in the same clothes he had committed the robbery with because he was the person who had done the robbery.  The question of whether these were light or dark clothes cannot adequately be determined from this CCTV recording.

24.  I also consider PW8’s evidence about how long he had lived at 190 Tai Nan Street.  The evidence is again contradictory. However, it does not seem to be crucial to the main issue because he was certainly living there when the robbery occurred.

25.  Having considered all the evidence and the submissions and perused the CCTVs, I found that my overall decision was that PW8 could be relied upon when he said the defendant was his lookout.  I find the CCTV recordings and phone records certainly provide independent support for this testimony.  I noticed the defendant’s statements in his own video-recorded interview.  I did not accept his denial contained therein, and I rejected his explanation of not being aware that PW8 would commit the robbery.     

26.  Having found this evidence of PW8 to be reliable to a criminal standard, I find it also sufficient to convict the defendant of the charge that he faces, and I convict him accordingly.