HKSAR v. LO SING-CHEE, ALSO KNOWN AS LO SHING-CHI

DCCC 482/2020

[2021] HKDC 255

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 482 OF 2020

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Reasons for Verdict

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1.  The defendant faces a single charge of robbery under section 10 of the Theft Ordinance, Cap 210.

2.  It is not disputed that on the evening of 21 March 2020 that a robbery occurred at the 7-Eleven convenience store at the Ground Floor of Tong Mi Road in Mong Kok and that 15 packets of cigarettes were stolen.  The progress of that robbery was evidenced by PW1, the shop assistant at the store, and by recordings from CCTV cameras in the store.

3.  The facts of the robbery are as follows.  At around 10.55 on 21 March 2020, PW1 started to close the store by pulling down the roller shutter to the entrance.  At 10.56, a person entered the store by pulling up the roller shutter.  The person was clothed in a motorcycle helmet with a distinctive anime character imposed on it, a white windcheater and jeans.  He carried a shoulder bag and wore gloves.  His shoes were black with white markings.

4.  PW1, fearing a robbery, locked himself in the staffroom and viewed the shop through a one-way mirror.  The robber came up to the staffroom door, tried to open the door and demanded PW1 leave the room. PW1 did not.  During this time the robber took out a knife from the shoulder bag and held it.  The robber then went to the cashier area, took away 15 packets of cigarettes valued at $850 and left the store at 2257.

5.  At 2304, a CCTV camera at Bimmer, which is a garage on Oak Street nearby, captured a person walking.  The person wore the same distinctive motorcycle helmet, white windcheater, shoulder bag and jeans. The person turned into an alleyway, took off the helmet and left it in the alleyway.

6.  At 2306, as actually recorded on the CCTV, although this may not be the correct time, a man is captured by a CCTV camera at Fu Tor Loy Building in Pine Street.  Again, nearby.  The man has a shoulder bag and black shoes with white marking.  He wears jeans and a short-sleeved polo shirt with a Hollister logo.  His face is visible.

7.  PW2, who reviewed the camera of Fu Tor Loy Building, said the recorded time was five minutes slow.  PW2, a police officer, gave evidence about CCTV cameras he had viewed and also the arrest of the defendant.  PW2 viewed all the CCTV cameras in the area that were relevant.  He said footage from a camera in Palm Street captured a male entering Cherry Street and then Oak Street where the Bimmer camera was located.  This man wore the distinctive motorcycle helmet and the white windcheater and carried a shoulder bag.  PW2 also viewed other cameras that followed the progress of the man captured by the Fu Tor Loy CCTV camera later on in the evening.

8.  On 23 March 2020, at around 2230 pm, PW2 patrolled into the subway at Cherry Street.  He saw the defendant.  He saw the defendant placing a newspaper covered object under a mattress at the location where the defendant was sleeping in a tent-like structure.  He also saw a short-sleeved polo shirt with a Hollister logo hanging on a pipe, a pair of jeans and a pair of black shoes with white pattern.  The object wrapped in newspaper was found to be a fruit knife measuring 32 cm.

9.  PW2 himself believed the defendant had a similar appearance to the man captured in the Fu Tor Loy camera, who he also believed to be the same man as was seen in the Bimmer camera.  PW2 therefore suspected the defendant had involvement in the robbery.

10.  PW2 arrested and cautioned the defendant.  Under caution the defendant said, “Give me a chance.”  PW(PW2?) said to him, “What do you mean?”  The defendant is said to have replied, “I did not rob the money, just more than 10 packets of cigarettes.”  After a further caution, the defendant also said, “Ah Sir, I didn’t have money.  That’s why I robbed 7-Eleven of the 15 packets of cigarettes.  Give me a chance, all the cigarettes are given to my friends.”  The police then seized and photographed the polo shirt, the jeans, the shoes with black and white marking and other items.  The defendant later refused to sign the post-record of these admissions.

11.  Besides this evidence, the prosecution produced a map of the area showing the locations of the CCTV cameras in relation to the 7-Eleven Shop, CCTV screen captures from the relevant videos and all the physical exhibits seized.

12.  The defendant himself did not give or call any evidence.  No adverse inference can be drawn from this decision.

13.  The defence case, as revealed by his examination of the witnesses, was that the defendant was not the robber, that the person seen in the Fu Tor Loy capture cannot definitively be said to be the defendant and is not identified as such, that the gap between the Bimmer capture at 11.04 and the Fu Tor Loy capture at sometime around 11.11 does not explain the time gap as the two cameras are only a short distance from one another.  It is also denied that the defendant made any of the admissions attributed to him by PW2. He said that this is reinforced by his refusal to sign on any post-record admission.

14.  As far as the legal considerations are concerned, a robbery occurs where a person steals and immediately before or at the time of doing so, in order to do so, uses force or puts a person in fear of being subject to force.

15.  There can be no dispute a robbery occurred.  It is proved by the undisputed evidence of PW1 and the CCTV cameras in 7-Eleven. It is clearly evidenced.

16.  The burden of proof of course remains on the prosecution at all times to prove the case beyond reasonable doubt and any admission that they rely on must itself be proved to be made voluntarily, even if it is denied that it is made.

17.  In this case the prosecution primarily rely upon the defendant’s admissions against interest.  If accepted and found to be true, and weight is attached to them, they will provide evidence of the defendant’s guilt in its own right.  Besides the evidence of those admissions, there is also circumstantial evidence provided by the CCTV cameras and the items of clothing seized from the defendant, the defendant’s what may be described as a camp in the subway.

18.  I turn to a resolution of those issues and also indicate -- I turn to a resolution of those issues.

The admission

19.  The defence submitted that PW1 could not be relied upon because he never mentioned in examination-in-chief that he had seen the defendant changing out of the polo shirt and jeans and into a T-shirt and shorts when he walked by on the evening when he was arrested.  Another witness, PW3 who was called, stood guard to the defendant and never said he heard any admissions or conversations.  And finally, the defendant never acknowledged the admissions and that they are therefore inherently unreliable.

20.  My finding on considering all the evidence was that PW1 was truthful and reliable.  His was the only direct evidence of what occurred.  He explained he did not mention the defendant changed his clothes in cross-examination because he said he was never asked about it before.  PW3’s evidence was that he was some 1 metre away and paying no particular attention. He was guarding the scene and the defendant, not allowing others entry amongst other things.  His evidence is unsurprising.  He does not in any way seriously undermine PW2’s evidence.

21.  Finally, the fact that the defendant did not sign the post-record merely illustrates the defendant did perhaps change his mind about the admissions at that stage.  It indicates nothing more.

22.  I find that PW2’s evidence to the defendant’s admissions is clearly admissible, taken in voluntary circumstances and it is reliable.  The admissions show they acknowledge the robbery and the items taken, and are clearly probative.

23.  And there is other evidence in this case; the CCTV evidence, the clothing and the knife that was seized at the defendant’s camp in the subway.  The defence say that the CCTV evidence cannot be probative; the person shown in the Fu Tor Loy camera, that man, cannot be shown to be the same man as captured by the earlier Bimmer camera; and finally, the Fu Tor Loy man cannot be proved to be the defendant in any event.

24.  I found that the CCTV camera provided some circumstantial evidence underpinning the prosecution case and supporting the admissions that had been made.  It can, I believe, be reasonably inferred to a criminal standard, which is proof beyond reasonable doubt, that the robber appeared and was captured in the Bimmer camera.  The synchronicity of his appearance and the clothing, particularly of the helmet, provide compelling evidence that they are the same person.  There are some similarities with the Fu Tor Loy capture, namely, the man shown there appears to have similar shoes and he has the shoulder bag.  These points of similarity provide some support for the proposition that they are the same man.

25.  However, a positive identification of that man to be the defendant cannot be made from this capture.  The discovery of similar shoes to the Fu Tor Loy man and the Hollister logo polo shirt, which can be seen from the Fu Tor Loy capture, provide continuity with the Fu Tor Loy capture, the shoes being the same as those captured also in the 7-Eleven video. The knife was identified by PW1 as being of the kind he saw.  The estimate of blade length is different; he put it at 20 cm.  However, all that can be said positively is that the knife that was found at the defendant’s camp was similar in appearance to the one that is shown on the video and seen by PW1.

26.  Overall, I find that the evidence of the admission alone is capable of proving the case against the defendant beyond reasonable doubt.  The evidence of the CCTV captures and seizures provides compelling supporting evidence of a circumstantial nature without being independent and probative.

27.  I consider that all this evidence taken together proves the prosecution case clearly against the defendant beyond reasonable doubt and I convict the defendant accordingly.