HKSAR v. JUNAID AHMED AND OTHERS

DCCC 523/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 523 OF 2013

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Reasons for Verdict

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1.  The five defendants face a charge of attempted robbery.  The charge alleges that on 15 March this year, they, together with two unknown persons, attempted to rob Mr Fung Shing outside the ground floor of No. 33 Tung On Street in Yau Ma Tei.

2.  The prosecution case is that the attempted robbery was committed by the five defendants, all of South Asian origin, and two other men of South Asian originwho escaped from the scene pursuant to a joint enterprise to rob Mr Fung Shing.  Mr Fung Shing, who ran a scrap metal business in Yuen Long, lived in Tung On Street and habitually carried large sums of money in cash with him for use in his business.

3.  The background facts of the incident which give rise to this charge have not been contested. 

4.  Mr Fung Shing lives on the mezzanine floor of 2-4 Tung On Street, a one-way street running from Pitt Street in the south to Dundas Street in the north.  It was his normal practice to leave home for work between 7.10 am and 7.30 am each day. 

5.  On the morning in question, he left the exit of his building, which was situated in a small alleyway, which led into Tung On Street, at around 7.20 am.  His intention was to walk to his goods vehicle, which was parked on the opposite odd-number side of Tung On Street further up the road, opposite a 7-Eleven store which was situated on the even-number side of Tung On Street.  That morning, Mr Fung was carrying a green bag which contained $541,000 in cash.

6.  The same morning, the police, obviously anticipating the possibility that something might occur, had mounted an operation to keep the area under surveillance.  Three observation posts were established, which have been referred to in this trial as OP1, OP2 and OP3. 

7.  OP1 was on the 3rd floor podium of Shun Fung Building at No. 3 Tung On Street, on the opposite side of the road to the entrance to the alley leading to the exit which Mr Fung would use to leave his building.

8.  OP2 was on the 1st floor podium of Orchid Court at 38 Tung On Street, which was on the opposite side of the road to the basketball court, the entrance to Lee Yip Street and the place Mr Fung’s goods vehicle was parked.

9.  OP3 was on the 8th floor rooftop of Tai On House in Pitt Street, from where the entrance to Tung On Street could be seen.

10.  For the purpose of giving evidence of their observations of what transpired that day, the prosecution called Chief Inspector Law Kwok-hoi(PW6) and Senior Inspector Yeung San-pong (PW7) who were in OP1; WDPC 56462 (PW8) who was in OP2; and WDPC 4140 (PW9) who was in OP3.

11.  Three officers were assigned to keep observation at street level.  Detective Station Sergeant Ching Kam-wah (PW10) posed as a security guard at Shun On Building, situated at 18-22 Tung On Street; Detective Sergeant 22652 (PW11) posed as a street cleaner; and a third officer, WPC 1468 (who was not called as a witness), posed as a cleaning worker in the lobby of Shun Fung Building, the building in which OP1 was located.

12.  In addition, other groups of officers waited in ambush at various locations in Tung On Street, Lee Yip Street, Canton Road and Pitt Street.

13.  One of these officers, Woman Sergeant 55976 (PW12) subsequently followed D4 and D5 from Pitt Street to a McDonald’s restaurant in Prosperous Garden, where they were arrested by DPC 2944 (PW13) and DPC 58722 (PW14).

14.  Apart from Mr Fung Shing himself (PW5), the alleged victim, who only appeared to have a limited appreciation of what was going on, the principal eyewitness evidence for the prosecution came from the officers positioned at OP1, OP2 and OP3 and the two officers posing as a security guard and street cleaner respectively.

15.  In addition, the prosecution adduced footage from private CCTV cameras situated on buildings in Tung On Street.  The court was thus able to see images of the activities of the defendants at various times and places in Tung On Street and in an alley beside the basketball court on the odd-number side of Tung On Street on the morning in question.

16.  The officers who were assigned observation duties that morning started their observation shortly after 6 am. 

17.  WDPC 56462 (PW8) who was at OP2 gave evidence of starting to see South Asian males arriving in Tung On Street at around 6.32 am.  By 6.38 am, a total of seven of them - comprising the 1st to the 5th defendants and two men subsequently referred to as WP1 and WP2 - had stopped in Tung On Street outside the basketball court across the road from where she was keeping observation.  They had talked together for about five minutes. The 4th and the 5th defendants had thereafter left the group and walked down Tung On Street in the direction of Pitt Street while the 1st defendant walked in the opposite direction towards Dundas Street.

18.  Both Chief Inspector Law (PW6) and Detective Senior Inspector Yeung (PW7) from OP1 saw the 4th and the 5th defendants walking down Tung On Street and turn left into Pitt Street.  They said that this was at about 6.48 am. 

19.  WPC 4140 saw the two men turn into Pitt Street, walk along Pitt Street and then turn left into Canton Road, where she lost sight of them.

20.  Very shortly after this, WDPC 56462 observed the 1st defendant had rejoined D2, D3, WP1 and WP2 next to the basketball court, not as previously in Tung On Street, but in an alley that ran alongside the basketball court in the direction of Ferry Street. 

21.  This gathering can be seen in CCTV footages taken from the building at 43-45 Tung On Street.  The men were apparently talking and beer was consumed by one or more of them.

22.  At about six minutes later at around 6.57, WPC 56462 said she saw the 4th and the 5th defendants approaching the group. 

23.  From the CCTV footage, the 1st defendant can be seen to take off the 4th defendant’s cap and then apparently give it back.  The 1st defendant then walked to Tung On Street with the 4th defendant followed a few seconds later by the 5th defendant.  He was then followed by the 2nd and 3rd defendants, WP1 and WP2.

24.  After the group reached the pavement of Tung On Street, WDPC 56462 says she saw the 4th and the 5th defendants again walk down Tung On Street in the direction of Pitt Street while D1, D2, D3, WP1 and WP2 stood on the pavement outside the basketball court.  She said that the 1st defendant faced the 1st, 2nd and 3rd defendants, WP1 and WP2 and made a number of gestures.  She demonstrated this by raising her right hand with a finger pointed upwards and then pointing in different directions.  Thereafter, the 2nd defendant and WP2 walked along Tung On Street in the direction of Pitt Street and shortly thereafter the 1st defendant and the 3rd defendant and WP1 did the same.

25.  Chief Inspector Law (PW6) and Detective Senior Inspector Yeung (PW7) gave evidence of what they observed of these three groups as they went along Tung On Street. 

26.  Both officers said that it was at around 7.01 am that they saw the 4th and the 5th defendants walk down the middle of Tung On Street in the direction of Pitt Street.  They had seen them stop when they reached the alleyway alongside 2-4 Tung On Street and then enter the alleyway for about half a minute before walking on to Pitt Street. 

27.  Whereas Detective Senior Inspector Yeung says that the two men were lost to his view after turning left at Pitt Street, Chief Inspector Law said that he could see them standing at the junction for two to three minutes before his attention was diverted to the 2nd defendant and WP2. 

28.  Both officers said they saw the 2nd defendant and WP2 walking down the middle of Tung On Street, but that they disappeared from their view when they walked close to the odd number of Tung On Street, from which side the officers themselves were keeping observation.

29. Both officers then observed the 1st, 3rd defendants and WP1 also walk down Pitt Street and stop near the entrance to the alleyway at 2-4 Tung On Street, where they talked and from time to time looked around, including, according to Detective Inspector Yeung, into the alleyway at 2-4 Tung On Street.

30.  At 7.10 am Detective Senior Inspector Yeung gave orders to Detective Sergeant 22652, who was posing as a street cleaner. 

31.  That officer confirmed the evidence of both Chief Inspector Law and Detective Senior Inspector Yeung that at the time as he came into Tung On Street he saw three South Asian males standing in Tung On Street on the even number side of the street by the alleyway leading to the entrance of 2-4 Tung On Street.  He also saw two other South Asian males who, it is clear from his evidence, were the 2nd defendant and WP2 on the opposite pavement facing 2-4 Tung On Street.  He then kept observation on these two groups of men from an alleyway directly opposite the alleyway leading to the entrance to 2-4 Tung On Street on the other side of the road.

32.  Detective Station Sergeant Ching Kam-wah (PW10), who was posing as a security guard, gave evidence that he was keeping observation on these two groups of men on either side of Tung On Street from the entrance leading to the doorway of Shun On Building at 18-22 Tung On Street.

33.  Both Chief Inspector Law (PW6) and Detective Inspector Yeung (PW7) said that they observed the 4th and the 5th defendants at about the same time (7.10 am) standing at the junction of Tung On Street and Pitt Street and from time to time looking into Tung On Street.

34.  At around 7.20 am, approximately 10 minutes later, the alleged victim, Mr Fung Shing, came out of his building at 2-4 Tung On Street and along the alleyway and turned right into Tung On Street.  As he did so, he noticed the three Asian males, who clearly must have been the 1st defendant, the 3rd defendant and WP1, to his left as he turned into Tung On Street and two other Asian males, who also clearly must have been the 2nd defendant and WP2, on the opposite pavement facing the alley.  Mr Fung had $541,000 in cash inside the green bag he was carrying, the strap of which was across his body.  He said that he was aware that the three men seemed to be following him and that that made him walk a little bit faster.

35.  While Chief Inspector Law, Detective Senior Inspector Yeung, WDPC 56462, Detective Station Sergeant Ching Kam-wah and Detective Sergeant 22652 all gave evidence as to what happened subsequently, the movements of Mr Fung and the 1st defendant and WP2 on one side of the road and the 1st and 3rd defendants and WP1 on the other side were captured by CCTV cameras, footages from which have been played to the court. 

36.  As a result, it has not been seriously disputed that the 1st defendant, the 3rd defendant and WP1 followed Mr Fung along the pavement on the even number side of Tung On Street while the 2nd defendant and WP2 walked in parallel on the pavement on the other side of the road.

37.  When Mr Fung came to a position opposite to where his goods vehicle was parked, he crossed the road to the driver’s door of his vehicle, which was facing north towards Dundas Street.  He opened the door of his vehicle and put the bag containing the money inside the vehicle. 

38.  Simultaneously, WP2 came round the front of Mr Fung’s vehicle and stood behind him while the 1st defendant followed by the 3rd defendant walked out into the road in the direction of Mr Fung from the even number side of the road.

39.  Detective Sergeant 22652 (PW11), who had been following the 2nd defendant and WP2 along the pavement on the odd number side of Tung On Street, gave evidence that after WP2 had turned right in front of Mr Fung’s vehicle in order to make his way round to the driver’s door, the 2nd defendant had followed him and reached the front of the vehicle.  It was at this point that the police operation became overt.  The agreed order “Go Go Go” was given and a considerable number of officers rushed to the scene from the direction of Pitt Street.  The 1st and 3rd defendants were arrested in Tung On Street.  The 2nd defendant was arrested in Lee Yip Street.  WP1 and WP2 were not caught.

40.  I shall deal later with the evidence of the actions of WP2 as he stood behind Mr Fung.

41.  WDPC 4140 (PW9) gave evidence that she could see the 4th and the 5th defendants standing at the junction of Pitt Street and Tung On Street at the time she heard the order “Go Go Go” given over the radio. 

42.  Chief Inspector Law had also given evidence that these two defendants were still at that location at around 7.20.

43.  WPC 4140 said that at about five seconds after she heard the order given, the 4th and the 5th defendants had hurriedly walked along Pitt Street, past Canton Road and Reclamation Street in the direction of Shanghai Street.  The 4th and the 5th defendants were followed by W/Sergeant 55976 (PW12) from CIB as they went into Shanghai Street and then via Public Square Street to a McDonald’s restaurant in Prosperous Garden opposite Yau Ma Tei police station, where they were subsequently arrested by DPC 2944 (PW13) and DPC 58722 (PW14).

44.  None of the defendants elected to give or call evidence.  Each defendant was the subject of video recorded interviews. While admitting that they had been present in Tung On Street, none of them admitted being party to an attempted robbery.

45.  The prosecution case, therefore, depends on whether the only reasonable inference that could be drawn from the evidence adduced by the prosecution or admitted was that there was a joint enterprise to rob Mr Fung and, if so, that each particular defendant was party to it and that the joint enterprise had moved beyond activities in preparation for such a robbery so as to constitute an attempt. 

46.  It was admitted that the 1st, 3rd and 4th defendants were men of previous good character and, accordingly, that was a factor I took into account in assessing whether each of them was the sort of man who would commit this sort of offence as well as in assessing the credibility of what they said to the police.

47.  I turn now to the credibility of the prosecution witnesses.

48.  Much of the significant evidence, in particular, insofar as the 1st, 2nd and 3rd defendants is concerned, was filmed by CCTV cameras and so is not dependent on the evidence of prosecution witnesses.

49.  There were, however, issues as to the credibility of prosecution witnesses, which I have considered.

50.  It has been suggested that because of the speed at which Mr Fung can been seen walking along Tung On Street and the length of time it took him to open the door of his goods vehicle, that he cannot have been alarmed by the presence of others on the road, in particular, by the presence of a group of three males on his side of the road and two males on the opposite side of the road. 

51.  While it is true that objectively it cannot be said that Mr Fung was walking fast along Tung On Street, it has to be borne in mind that all he was saying that he was walking a little bit faster than he would otherwise have done.

52.  I accept his evidence that he was concerned about the possibility of being followed. 

53.  The CCTV images are not clear enough to see whether he looked behind him when he just started to walk along Tung On Street. Thereafter, it can be seen that on at least three occasions he glanced to his left as he walked along the street, which is consistent with a concern about the men he had seen on the opposite pavement.

54.  I have viewed the evidence of the police witnesses with particular care in order to satisfy myself that insofar as relevant matters are concerned, their evidence relates to matters they actually personally observed, rather than giving an account based on what their colleagues had said that they had observed. 

55.  There was a case conference or debriefing after this operation, at which some, if not all, of the officers involved, discussed what they had observed from their particular standpoints before they made their statements. 

56.  The evidence was that that meeting was to ensure that the code numbers (AP1, AP2, WP1, WP2, etc) used by the officers to describe particular suspects corresponded with each other and with the particular clothing worn by that suspect.  It has to be borne in mind that five suspects had been arrested, so there would be little doubt about what they were wearing. 

57.  The conference was also said to discuss the timings at which particular things occurred.

58.  I am satisfied that there is nothing in itself wrong with holding such a discussion, provided that officers subsequently make statements and give evidence in accordance with their honest recollection.

59.  One matter that in particular concerned me was that three of the prosecution witnesses - Detective Sergeant 22652 (PW11), DPC 2896 (PW15) and DPC 3976 (PW17) - had made statements to the effect that when they were approaching the 1st defendant he was attempting to escape.  When cross-examined about this, they gave different accounts of what the 1st defendant had done in this regard. 

60.  It was clear from the CCTV footage that the 1st defendant had made no attempt to escape. 

61.  In the light of this fact, I have given careful consideration to how far I could rely on other aspects of the evidence.

62.  Neither PC 2896 (PW15) nor DPC 3976 (PW17) gave evidence of the activities of the defendants or the wanted persons prior to the order “Go Go Go” being given.

63.  As a result of their untrue evidence about the 1st defendant’s attempt to escape, I have, therefore, disregarded anything said by either of these witnesses regarding the interception and arrest of the 1st and the 3rd defendants, save that I accept DPC 2896’s evidence that after his arrest the 1st defendant had claimed that he did not know what had happened.

64.  Detective Sergeant 22652 (PW11) was the officer posing as a street cleaner. 

65.  After careful consideration and bearing in mind the extent to which his evidence as to earlier matters was confirmed by the evidence of other witnesses, whom I did accept as truthful witnesses, and the CCTV evidence, I accepted his evidence as to his earlier observations.  In particular, I accepted his evidence of his observations of all the defendants prior to the police order to take action, including the fact that he had seen WP2 walk around the front of Mr Fung’s goods vehicle and that the 2nd defendant had followed him.

66.  I also accepted his evidence that he had seen WP2 doing something after rounding the vehicle and coming up behind Mr Fung.  I will refer later to my findings in that regard.

67.  Chief Inspector Law Kwok-hoi was the senior officer involved in the operation. 

68.  While I accept he was keeping observation from OP1 in Tung On Street during the relevant period and could give a general description of what occurred, I had reservations about his ability to recall matters in detail. 

69.  The events occurred on 15 March 2013.  Unlike Detective Senior Inspector Yeung, who was with him, he made no contemporaneous note of what occurred and the first record he made of his observations was his statement made on 15 July 2013, about four months later (Exhibit P20 and Exhibit P20A).  He claimed that he had not referred to any document when making this statement but said that he had mostly relied on his memory but that he had asked the OC case (Detective Senior Inspector Yeung) if he was unsure about particular times or descriptions of persons.

70.  I was not sure that the chief inspector was being wholly frank about how he had compiled his statement.  As the person in charge of the operation, he would, as Detective Senior Inspector Yeung, testified, have had access to the whole file, including Detective Senior Inspector Yeung’s statement.  It is difficult to understand why in those circumstances he would have not looked at the file before making his statement.

71.  One particular matter that arouses suspicion that he may have looked at Detective Senior Inspector Yeung’s statement is the fact that in his statement he mentioned that it was WP1 rather than D3 who followed D1 in crossing the road towards Mr Fung.  This was a mistaken observation of Inspector Yeung when he gave evidence but Detective Inspector Yeung admitted that at that time he was concentrating on Mr Fung.

72.  This reservation about the accuracy of Chief Inspector Law’s evidence was of little significance as I accepted Detective Senior Inspector Yeung’s evidence that he had kept a note of what occurred.  I found Detective Senior Inspector Yeung an impressive, honest and reliable witness, save as to the matter I have previously referred to as to what occurred that day.

73.  Despite the fact that neither Chief Inspector Law nor Senior Inspector Yeung was visible on CCTV footage, I am satisfied that they were keeping observation from OP1 at the relevant time.

74.  I found both WDPC 56462 (PW8) and WDPC 4140 (PW9), who were keeping observation from OP2 and OP3 respectively, to be honest and reliable witnesses, as were Woman Sergeant 55976 (PW12), DPC 2944 (PW13) and DPC 58722 (PW14).

75.  The evidence of Detective Station Sergeant Ching Kam-wah (PW10) was attacked on the basis that the CCTV footage demonstrated that although he came out of Shun On Building four times during the period between 8 minutes past 7 and the time Mr Fung emerged into Tung On Street at around 7.20, he was not, as he claimed, keeping the three men standing at the entrance to the alleyway at 2-4 Tung On Street under continuous observation during this period and that he could not have kept the two men on the opposite pavement under observation as his view was blocked by a vehicle.  He explained how he kept the three men under observation from the entry to the doorway.

76.  I have no reason to doubt his explanation.  Even if he was not able to keep the two men on the opposite pavement under continuous observation, I do not find that the CCTV footage demonstrates that he was not able to see the two men on the opposite pavement from the doorway of Shun On Building.  In any event, his observations were confirmed by other witnesses, including Mr Fung, whose evidence I accepted.

77.  I propose firstly to deal with the case against the 1st defendant, the 2nd defendant and the 3rd defendant and whether the only reasonable inference is that all three were party to a joint enterprise intending to rob Mr Fung Shing in Tung On Street that morning.

78.  I am satisfied that in the case of each of those defendants, that inference is overwhelming and that it is the only inference that can reasonably be drawn.

79.  They and WP1 and WP2 had arrived in Tung On Street shortly after 6.30 am, approximately 40 minutes before Mr Fung Shing left home.  Although it was apparent that some beer was consumed, there is no apparent reason why they should congregate in a street like Tung On Street at that hour in the morning. 

80.  They had discussions for several minutes as a group on two occasions:  at 0638 outside the basketball court in Tung On Street and later at 0651 in the alleyway beside the basketball court.  Following this latter discussion, the 1st defendant had made gestures, which I am satisfied appear to be directions to the others. 

81.  Thereafter, they split into two groups: D2 and WP2 going to the pavement on the opposite side of Tung On Street from where Mr Fung would emerge, and the 1st and 3rd defendants and WP1 went to a position adjacent to the entrance to that alley.  The two groups then waited in those positions for approximately 10 minutes and only began to move when Mr Fung came out of the alleyway carrying the bag containing the money.  The two groups then moved in parallel on either side of Tung On Street in the same direction as Mr Fung. 

82.  It is apparent from the CCTV footage that they were not simply strolling but walked purposefully along the street.  The 1st defendant, who led the group on the even number side of the street, was wearing a face mask and cap.  WP1 was carrying a bottle.  I am satisfied that on the other side of the street WP2 was carrying a bottle.

83.  I am satisfied that it was not mere coincidence that the defendants should wait at or opposite the entrance of the alleyway at 2-4 Tung On Street in the way they did, nor was it coincidence that they should move off in the same direction as Mr Fung once Mr Fung started walking up Tung On Street.  Their objective was obviously Mr Fung.  When Mr Fung crossed the road to his vehicle, WP2 came round the front of Mr Fung’s vehicle and the open door of Mr Fung’s vehicle and stood behind Mr Fung while the 2nd defendant was in the course of following him and had reached the front of the vehicle.  Simultaneously, the 1st and the 3rd defendants started to cross the road to Mr Fung.

84.  Even without the evidence of any gestures by WP2, I am satisfied that the only reasonable inference from all the circumstances is that the 1st defendant, the 2nd defendant, the 3rd defendant, WP1 and WP2 were party to a joint enterprise and that that joint enterprise was to rob Mr Fung Shing.  Any other explanation for their activities was fanciful.

85.  In reaching that conclusion, I have taken into account accounts given by each defendant to the police in considering the case against him.

86.  At the time of his arrest, the 1st defendant had claimed he did not know what had happened.  His explanation for being in Tung On Street that morning is that he had been drinking with a friend in Dundas Street in Mong Kok (counters 482 and 848 of Exhibit P24) and had passed the junction of Lee Yip Street and Tung On Street because it was on the way to his home (counter 503), which was in Chung King Mansion in Tsim Sha Tsui (counter 476).  He claimed that he had not stopped there.  He denied wearing the mask which the interviewing officer alleged he was wearing at the time of the incident and claimed that he was allergic to wearing masks. 

87.  Bearing in mind the evidence of his movements and the fact that he was wearing a mask, his account was clearly untrue and I could attach no weight to it.

88.  The 2nd defendant’s account was that he had been arrested without any reason and was innocent.  He said that he lived in Temple Street (counter 394 of Exhibit P28) and that every morning he came out at that time to walk around.  When asked what he was doing in Tung On Street at that time he said, “Cannot tell.  I was just strolling.” (counter 344.)  He claimed that he had been roaming in Tung On Street for about 20 minutes (counter 410) but when later asked (counter 88 of his third interview) why he had been on Tung On Street for such a long time, he said he wanted to remain silent.  He admitted he had been with the people who were arrested but claimed that he did not know who they were; he had just met them (counter 418).  In his third interview, when asked why he had gone near Mr Fung’s vehicle, he said, “I don’t know.  Do not remember.” (counter 103.)

89.  Based on the evidence I saw and heard of his movements in Tung On Street that morning, I was satisfied that he was not simply out for a stroll.  I found I could attach no weight to his account to the police.

90.  I was satisfied that until the police queried his identity, he was pretending that he was a man called “Major Singh”.  He not only had a false Form 8 Recognizance in that name on him but had signed that name on a Pol.153 and on PC 58960 (PW16)’s notebook and also given that name in his first interview, even though he subsequently claimed in his second interview that his real identity papers were at his home in Temple Street (counter 238).

91.  I accepted also the evidence of PC 58960 (PW16) that the 2nd defendant was only apprehended after a struggle as he ran down Lee Yip Street after the police operation had gone overt. 

92.  While the false Form 8 and the evidence of his flight and struggle are consistent with his participation and his involvement in the joint enterprise, they themselves are open to alternative explanations and I would not have inferred guilt if they had been the only evidence against him. 

93.  On the basis of the evidence as a whole, I was in no doubt that he was party to the enterprise to rob Mr Fung Shing.

94.  The account given by the 3rd defendant in his interview was that he had been drinking in Tsim Sha Tsui in the early hours of the morning and was drunk.  He could not remember why he had gone to Tung On Street that morning (counter 380), could not remember what he had seen in Tung On Street before he was arrested and did not remember if he talked to the four men with whom he had been arrested. 

95.  While accepting that he and others had drunk some beer, there is no doubt in my mind, just having seen the purposeful way he walked along the pavement of Tung On Street as he and his companions followed Mr Fung Shing, even ignoring the other evidence of his movements that morning, that his account of being so drunk that he could not remember why he was there or what occurred was completely untrue.  I found that I could attach no weight to his explanation.

96.  I have no doubt based on the totality of the evidence that he was party to a joint enterprise to rob Mr Fung Shing.

97.  Having been satisfied that the presence and activities of the 1st, 2nd and 3rd defendants and WP1 and WP2 in Tung On Street that morning were pursuant to a joint enterprise to rob Mr Fung Shing, I have gone on to consider whether the only reasonable inference is that the 4th and 5th defendants were party to the same enterprise.

98.  The 4th and the 5th defendants had arrived in Tung On Street at approximately the same time as the 1st, 2nd and 3rd defendants and WP1 and WP2, approximately 40 minutes before the attempt was made to rob Mr Fung Shing.  During the ensuing 40 minutes they joined the group comprising D1, D2, D3, WP1 and WP2 on two occasions, initially for about five minutes in Tung On Street, where there was a discussion outside the basketball court at about 0638 and later just before 6 am.  Following each of these meetings with the other men, they had walked along Tung On Street in the direction of Pitt Street.  On the second occasion, they had entered the alleyway from which Mr Fung Shing was later to emerge for around 30 seconds.  They then proceeded to the junction of Pitt Street and Tung On Street. 

99.  I accept they were in that position when Mr Fung Shing emerged onto Tung On Street. 

100.  It is in my view significant that Tung On Street is a one-way street and the only point a vehicle could lawfully access that stretch of Tung On Street between the start of that street and the position where Mr Fung’s goods vehicle was parked was through the junction at which the 4th and the 5th defendants were standing.  The position at which they were standing would put them in a position to warn the other defendants if for instance a police vehicle approached.

101.  All these factors persuade me that the only reasonable inference is that the 4th and 5th defendants were party to the joint enterprise to rob Mr Fung. 

102.  That inference is confirmed by the evidence of WPC 4140, that about five seconds after the police order “Go Go Go” had been given, D4 and D5 walked off from the junction in a hurried manner along Pitt Street. 

103.  Even if I disregarded WDPC 4140’s opinion that the 4th and the 5th defendants appeared to be in a hurry, I do not accept that it could have been a coincidence that this was the moment they decided to leave.  It is clear that the police officers were rushing down Tung On Street from Pitt Street, in other words, away from the 4th and the 5th defendants.  If they had been innocently waiting at the junction, their curiosity would have led them to have looked to see what was occurring, particularly as the South Asian males with whom they had just been associating would, to their knowledge, have been still in Tung On Street.

104.  In reaching the conclusion that they were party to the joint enterprise, I have borne in mind the video recorded interviews both the 4th and the 5th defendants had given to the police.

105.  The 4th defendant’s account was that he had consumed drugs and had slept the previous night in a garden in Yau Ma Tei (counters 81 and 99 of his interview of 17 March).  On his account, he had first met the 5th defendant (counter 349 of his first interview) and had then met other friends (counters 101 and 376).  He had asked these other friends what they were doing but they had not told him (counter 434).  He had asked them whether they wanted to join him in going to Tsim Sha Tsui and they had said, “Not yet.” (counter 447.)  They had said to him that he could go without them or he could wait for them (counter 455).  He said that he was waiting for them because they were friends (counter 470) but they did not come (540).  After waiting for about 20 to 25 minutes, he suggested to the 5th defendant that they leave (counter 243) and the 5th defendant had said that he wanted to drink Coca-Cola, so they had gone to McDonald’s.

106.  I did not believe this account.  The other friends to whom he was referring can have only been one or more of the 1st, 2nd, 3rd defendants, WP1 or WP2.  Bearing in mind that they were about to commit a robbery, it is fanciful to suggest if the 4th defendant was not involved that they would have suggested that D4 might wait for them, particularly as they would have been able to see that both the 4th and the 5th defendants were in a position where they might see what was about to happen.

107.  The 5th defendant’s account was he knew nothing about any robbery.  He had gone to Tung On Street because he sometimes went there for a morning walk (counter 241 of his interview on 15 March).  He had encountered a friend called Ricky (counter 26) (presumably the 4th defendant) and he had started to chat with him and they had then met up with some of Ricky’s friends (248) who were not his own close friends (counter 26).  After meeting them, he had stood for about 10 minutes as he was waiting for the shops to open.  He was intending to buy a recharge card in Jordan.  When the shops were about to open, he had said to Ricky, “Let’s go now.” (That is counter 343.)  Ricky had replied he was feeling thirsty so he had suggested they buy Coca-Cola from McDonald’s which was nearby (counter 367). 

108.  I did not believe the 5th defendant’s account.  There was no reason why he should wait in Tung On Street if he intended to buy a recharge card in Jordan.  I did not believe it was simply coincidence that he should have decided to leave at the moment the police operation went overt.  It would have been apparent to the 1st, 2nd, 3rd defendants, WP1 and WP2 that the 4th and the 5th defendants were waiting at the junction of Pitt Street and Tung On Street.  They would not have gone ahead with their plans to rob Mr Fung Shing if the 4th and the 5th defendants were not parties but in a position to observe what was occurring.

109.  I am satisfied that both the 4th and the 5th defendants were party to the joint enterprise to rob Mr Fung Shing.

110.  Having been satisfied that all five defendants were party to a joint enterprise to rob Mr Fung Shing, I have to be satisfied that one or more of those acting pursuant to the joint enterprise had performed acts beyond merely preparatory to the commission of the offence of robbery.

111.  There is no evidence of any physical contact between any of the defendants and Mr Fung or indeed the wanted persons and Mr Fung or the bag which contained the money. 

112.  There is no evidence of any demand that Mr Fung hand over the bag. 

113.  Mr Fung said that he had simply taken the bag off from over his shoulder and around his body, opened the driver’s door and placed it in the passenger compartment of his goods vehicle when he was approached from behind.  At that stage, WP2 had come round the front of the vehicle, around the open driver’s door, which was directly behind Mr Fung.  The 1st defendant was walking briskly and was already halfway across Tung On Street, heading in the direction of Mr Fung, followed by the 3rd defendant.

114.  Mr Fung’s evidence was that he felt a pair of hands stretching out over his shoulder on either side of his head.  He was able to see blue sleeves. 

115.  Although the CCTV images are not particularly clear, I am satisfied that he is probably mistaken in this regard.  He may have confused this incident with the approach of the police later. 

116.  Detective Sergeant 22652 (PW11) said that when WP2 was behind Mr Fung, WP2 raised his hand and put it on the car door. He said it was “like blocking the car door” but he later admitted that from his position he could not be clear as to whether WP2 actually touched the door or simply put his hand in front of the door.

117.  The CCTV footage is not clear enough to see whether WP2 did actually touch the car door.

118.  I am, however, satisfied that, having seen the CCTV footage, that WP2 had come round the car door and was in a position to stop Mr Fung closing the door when Mr Fung came to do so. 

119.  Furthermore, I am satisfied from my observation that WP2 did put a hand out in the direction of Mr Fung before WP2 became aware of the presence of police.  That evidence accords with the observations of WDPC 56462 (PW8) that WP2 had raised his hand out.  Whether she is correct that it was the right hand, I cannot be sure from my observation of the CCTV footage.

120.  As the English Court of Appeal observed in the case of Tony Campbell [1991] 93 CrAppR, there are no hard and fast rules for determining as to when in varying circumstances an attempt has begun.  That matter has to be decided on the facts of the particular case.

121.  I am satisfied on the facts of this case matters had passed a stage at which those involved in the joint enterprise would decide whether or not they would at that moment proceed with that enterprise.  The acts performed by those closest to Mr Fung indicated a fixed, irrevocable intention to go on to commit the complete offence of robbery, unless they were involuntarily prevented from doing so.  They had, to adopt the words of Lord Diplock in DPP v Stonehouse [1977] 65 CrAppR 192, 208, crossed the Rubicon and burned their boats.  I would have reached the same conclusion even if I had not been satisfied that WP2 had put his hand out towards Mr Fung.

122.  I am satisfied that there was an attempt to rob Mr Fung and that that attempt was pursuant to a joint enterprise to which all the defendants were party to rob him.

123.  I find all the defendants guilty of the offence of attempted robbery charge.