HKSAR v. KOO TSANG WING AND OTHERS

DCCC 657/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 657 OF 2015

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Reasons for Verdict

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1.  The 3rd defendant in this case has pleaded not guilty to one charge of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210. The 1st and 2nd defendants of this case were jointly charged with the 3rd defendant, and both pleaded guilty on the first day of this trial.

2.  The offence location was a furniture shop on Shanghai Street, Mong Kok, Kowloon, and the date of the offence was 21 April 2015.  Exhibit P2 is a photo album of the shop, the area and a vehicle involved.

3.  The police had intelligence in advance of a possible burglary in this area with four possible target persons.  They laid an ambush in the area, armed with photographs of the four persons.

4.  Two officers gave evidence of the burglary they witnessed and who they saw involved.  The issue in this case is whether or not the 3rd defendant was actually with the 1st and 2nd defendants when they burgled the premises, and, if the identification is accurate, did he jointly burgle the premises with others, or was his presence for reasons otherwise.

The Prosecution Case

5.  PW1, PC17419, part of a surveillance team of the CIB from 2 am on 21 April, described recognising the 1st and 2nd defendants from photographs from his observation point some 35 to 40 metres away from them.  He describes seeing them both at 4.39 am, 5.05 am, 5.54 am and 6.18 am.  They sawed off a padlock on a shutter and broke open the switch control box that operated the roller shutter.  However, they did not open the shutter.

6.  At the fifth sighting at 6.30 am, the 1st and 2nd defendants came back with a third man.  PW1 then observed these same three men together on two more occasions at 6.50 am and 7.39 am.  At 6.30 am he saw the 2nd defendant with a bag.  The 2nd defendant opened the roller shutter at the switch box and put his bag inside the shop. The third male closed the shutter at the switch box, and the three men left together.  At 6.50 am, the third male opened the shutter at the switch box, and the 2nd defendant went inside the shop for about 10 seconds.  He came out with his bag that he had placed inside earlier. The third man again at the switch box closed the shutter.

7.  At 7.39 am all three appeared again.  The 1st defendant opened the shutter at the switch box.  The 1st and 2nd defendants went inside the shop.  The third male stood outside, looking around.  The two men were inside for a few minutes.  At 7.42 am, the operation turned overt and the men were arrested.

8.  PW1 saw the third male run away towards Dundas Street.  PW1 described the third male as wearing a dark bucket hat, dark trousers and jacket, being 5 foot 6 inches tall, 45 to 50 years old, and of medium build.  He did not identify him as the 3rd defendant.

9.  PW2, PC16143, another surveillance officer of the CIB, started to survey and observe on Shanghai Street.  He had been briefed that a shop on Shanghai Street was a target to be burgled, and he had four photographs of four suspects to look out for.  He began observing the area, and at 5.53 am he saw the 1st and 2nd defendants approach a silver vehicle. The 1st defendant took a black bag from the boot of that vehicle and walked away.  At 5.56 am they both returned to the vehicle, and the 1st defendant put the bag back in the boot.  They got into the vehicle at 5.59 am and got out again one minute later.  The 1st defendant opened the boot again and closed it.  They both walked away.

10.  At 6.03 am, the silver vehicle drove away.  At 6.16 am, PW2 saw the same vehicle parked outside No 450 Shanghai Street.  At 6.22 am, the vehicle drove away, but returned to the same spot some three minutes later.  At 6.26 am, PW2 saw the 2nd defendant get out of the back seat, open and then close the boot.  Both the 1st and 2nd defendants walked towards Dundas Street.  The vehicle drove away.

11.  At 6.30 am, the vehicle returned and parked at the same spot.  The 1st and 2nd defendants got out of the back seat.  The 2nd defendant had a bag.  A third male got out of the front passenger seat.  PW2 described him as 45 to 50 years old, 5 foot 6 inches tall, medium build, wearing a black jacket that had yellow/green reflective strips on both sleeves and dark trousers and a dark bucket hat.  He recognised the male as one of the four photographs that he held.  He produced the four photographs he had been given, Exhibit P3.

12.  D1, D2 and D3 can be seen in three of the four photographs.  He identified D3 in court and from the photograph.

13.  PW2 was not in a stationary observation post, but walking up and down the street.  He pretended to be a possible customer to numerous prostitutes in that area.  He got as close as 2 to 3 metres from the third man he describes as the 3rd defendant when the 3rd defendant was sat in the front passenger seat of the silver vehicle at 6.30 am.  He was that close when the 3rd defendant got out of the vehicle.  He saw his face for two to three seconds as the 3rd defendant walked towards him.  He saw the 1st and 3rd defendants get out of the same silver vehicle again at 6.50 am when it was parked on Dundas Street.  At 6.52 am he saw the 2nd defendant carrying a black bag and putting it into the boot of that same vehicle.  All three men got into the vehicle and it drove away.

14.  At 7.20 am, PW2 saw the 3rd defendant again, this time loitering on Shanghai Street, looking around.  At 7.31 am, he saw the 3rd defendant walk to a white heavy goods vehicle and get in it into the driver’s seat.  The vehicle is seen in photographs 23 to 28 of book 1, Exhibit P2.  Photographs 26 and 28 show the ignition and ignition lock damaged.

15.  At 7.37 am, the 2nd defendant walked up to this white heavy goods vehicle and talked to the 3rd defendant for about 10 seconds before walking to Shanghai Street.  PW2 saw the 2nd defendant meet the 1st defendant, and both walked towards a furniture shop.  Two minutes later, at 7.39 am, the 3rd defendant got out of the white heavy goods vehicle and walked towards the same furniture shop on Shanghai Street.  He then saw the arrests take place.  PW2 was 10 to 15 metres away when he saw 3rd defendant arrested.

16.  From 7.39 am, when the 3rd defendant got out of the white heavy goods vehicle, until he was arrested a few minutes later, PW2 did not lose sight of the 3rd defendant.  When the 3rd defendant was stopped by the police, PW2 saw the silver vehicle drive away.

17.  In cross-examination, PW2 did not agree that he could not recognise the third male in the four photographs.  The 3rd defendant’s identification was in dispute.  He did not agree that he had picked out the wrong man in his identification in court.  He did agree that he did not write the 3rd defendant’s name in his statement, but described him as an unknown man.  He explained he had had a much longer time and more opportunity to identify the 1st and the 2nd defendant; however, he is sure he recognises the 3rd defendant from the photographs.  There was no challenge to his evidence that the 3rd defendant was one of the four photographs in his possession.

18.  PW3, PC2034, also from CIB, was on standby near Shanghai Street.  He did not observe the comings and goings at the furniture shop from his hiding place, but heard of each sighting and event on his walkie-talkie.  At 7.40 am he was instructed by his superior to come out as the arrest operation had begun.  He went towards the furniture shop, but on Dundas Street he saw the 3rd defendant running towards him, chased by several CIB colleagues.

19.  His description of the 3rd defendant matched the description given by PW1 and PW2.  PW3 recognised the 3rd defendant from the four photographs he had been given earlier at their briefing.  He went forward to stop the 3rd defendant.  He stepped in front of the 3rd defendant as he ran at him, and showed the 3rd defendant his warrant card.  The 3rd defendant did not stop, and ignored him.  He grabbed the 3rd defendant with both hands, and “put him down on the ground”.  PW3 pressed the 3rd defendant to the ground face down and cuffed his hands behind his back.  He then lifted him up and took him off the road to the pavement, ultimately to a back alley on Dundas Street.

20.  There, PW3 searched him, and amongst his belongings he found a mobile phone, a black and blue Nokia phone.  He put this phone and all the 3rd defendant’s other personal belongings into a bag and handed it to an officer of the CID team that took over the investigation as well as the 3rd defendant.  PW3 had made a list of all the items he seized and found on the 3rd defendant.

21.  PW3 did arrest the 3rd defendant for burglary, but did not caution him.  As a CIB officer, he would not investigate the case, but hand over the 3rd defendant to a CID team.  He waited in the back alley for this team with the 3rd defendant.  He asked the 3rd defendant if he wanted to wear a hood, and the 3rd defendant nodded.  PW3 put his hood on the 3rd defendant but took it off when he knew the CID team were about to arrive so they could see the suspect arrested for themselves.  He took this hood away with him and did not know if the 3rd defendant was hooded again by the team that took over.

22.  After the arrest and before the CID team took over, the 3rd defendant had remained silent in the back alley.  He sat on the ground until the next team arrived.

23.  PW4, PC58138, was called to give evidence of his arrest of the 1st defendant and seizure of the 1st defendant’s black and white mobile.  He handed this and other items seized from the 1st defendant to the exhibits officer, PW5, DPC59117.  PW5 produced the 1st defendant’s black and white mobile phone, Exhibit P4.  He had tested this mobile at the police station and found out its number was 5934 7743.  This witness was not cross‑examined.

24.  This telephone number is relevant to the prosecution’s case against the 3rd defendant.  The 3rd defendant’s black and blue mobile was seized by PW3 and handed over to PW6.  It was also tested at the police station using the police officers’ telephones.  PW6 had tested the 3rd defendant’s mobile, Exhibit P5, and ascertained its telephone number was 5538 3381.  He was also not cross-examined.  He used P5 to call a police station number and therefore could see its number.

25.  Call records were produced, Exhibits P7 and P8, for both mobile numbers of the 1st and the 3rd defendants’ mobile phones.  Call records showed numerous calls made between the 1st and the 3rd defendants’ mobiles between 1 am and about 7.30 am, the time of their arrests, on 21 April 2015.

26.  PW6, DPC58575, said on 21 April 2015 at 9.15 am he and others of his team were told to relieve PW3 and take over the 3rd defendant on Dundas Street.  He and DPC201, PW8, proceeded to the back alley.  He heard PW8 arrest and caution D3.  He heard the 3rd defendant say he was a lookout and ask for a chance.  He saw PW8 immediately record the admission in his notebook, Exhibit P13, in the alley before they went back to the police station.

27.  This post-record in PW8’s notebook was challenged, the objections to it submitted in Exhibit D1.

28.  PW6, PW7 and PW8 were implicated by defence as having threatened, induced and assaulted the 3rd defendant.  The admission was not made by the 3rd defendant voluntarily or at all.

29.  The admission was dealt with by way of the special procedure.  It was put to PW6 that P13 was not written in at the scene, but in the search room of the report room at Mong Kok Police Station.  In that room, he was told to admit he acted as a lookout by both PW6 and PW8.  He was also shown admissions signed by the 1st and 2nd defendants.  Whilst in this room he saw PW8 write out his notebook entry and ask the defendant to sign it.

30.  PW7, Sergeant 51688, came into the room and threatened to waterboard and torture the 3rd defendant.  This sergeant then punched the defendant’s left arm twice and his chest once.  After PW7 threatened and punched him, the 3rd defendant agreed to sign P13, an admission he never uttered.

31.  PW6 gave evidence that they were only in the search room for two to three minutes.  They arrived at the station at 9.55 am and immediately handed the 3rd defendant to the duty officer.  At 10.42 am, PW8 signed the 3rd defendant out from the duty officer to continue his investigation.  At 10.55 am, PW8 handed the 3rd defendant back to the duty officer.

32.  PW7, the sergeant, was tendered for cross‑examination. It was put to him, and denied, that he told the 3rd defendant he could beat him up.  He denied he threatened the 3rd defendant with waterboarding and traditional Chinese torture.  He denied he punched the defendant’s arm and chest, which led to the 3rd defendant writing the declaration and signing P13 against his will.

33.  PW8 described taking over the 3rd defendant from PW3 at the scene, as well as the 3rd defendant’s admission he made after caution.  The 3rd defendant admitted that he had been a lookout.  PW8 then got out his notebook and post-recorded the arrest and admission immediately.  He took off one of the handcuffs so the 3rd defendant could write the declaration and sign the notebook as directed whilst in the back alley.  PW8 gave evidence that at 9.55 am at Mong Kok Police Station, the 3rd defendant was handed over to the duty officer at the report room.  PW8 then went away to do some paperwork, in particular open a case file number, and he then signed the 3rd defendant out from the duty officer at 10.42 am.  From 10.42 to 10.46 am, PW6 and PW8 searched the 3rd defendant in the search room.  They found nothing else.  PW8 said at 10.47 to 10.52 they sat at a table and bench in the waiting area of the report room, where PW8 issued a POL153 to the 3rd defendant.

34.  They sat there because all the interview rooms at that time were occupied.  The 3rd defendant signed the POL153 at 10.52 am, Exhibit P14.  At 10.54 am, the 3rd defendant signed to acknowledge receipt of a copy of the post-recorded statement.  That receipt is P15.  At 10.55 am, PW8 handed the 3rd defendant back to the duty officer.

35.  This duty officer was PW10, Station Sergeant 50381, called in rebuttal in the special issue.  He produced the prisoner’s movement record, which supported the times given by PW8.  It is Exhibit P17.

36.  PW8 found out later that at 11.16 am, the 3rd defendant had made a complaint that he had been assaulted earlier in an interview room by plainclothed officers.  The 3rd defendant had told PW10, the duty officer, that he had been assaulted, but did not say by whom. He was sent to hospital for treatment, not before PW10 took two photographs. Exhibit D2 is two photographs of the 3rd defendant’s chest, and Exhibit D3 is a medical report of the 3rd defendant.

37.  At a subsequent video-recorded interview, the 3rd defendant, with a lawyer present, maintained his right of silence and did not answer any questions.

38.  It was put to PW8 that the defendant was hooded at all times until he was taken back to the station, which he denied.  He also denied he had been given two mobile phones that morning.  He was sure it was only one mobile phone, and that belonged to the 3rd defendant.  It was put to PW8 that he did not give the 3rd defendant a copy of his notebook, P13, and ask him to sign a receipt at 10.54 am as recorded on Exhibit P15, but much later, at about 7 pm.  When he did, he asked the 3rd defendant to add some signatures onto the notebook itself.  The 3rd defendant took this opportunity to cross out his alleged admission.

39.  During cross-examination, PW8 was shown his notebook, P13, and shown the line through four Chinese characters, four out of the 15 making up the admission over two lines of a notebook.  PW8 until then had not noticed it before.  He did not see the 3rd defendant draw the line.  He thinks it was a careless swipe with the pen when he wrote in it while standing in the alley with nothing to lean on, or the 3rd defendant made the mark accidentally whilst signing it in the back alley.  The 3rd defendant had held the notebook while he wrote the declaration himself, but PW8 had held the notebook when he asked the 3rd defendant to sign his signature in several places.  PW8 opines it was an accidental swipe with the pen on the page, but he says the line, whether deliberate or accidental, does not change the fact the 3rd defendant said those words under caution.

The Defence Case

40.  In the special issue, the defendant elected to give evidence.  He did not deny he was chased and brought down by PW3.  He was grabbed, put on the ground face down, and his hands were cuffed behind his back. He described being searched in a back alley of Dundas Street, hooded and sat on the ground.  At 9.15 am, he recalls another group of police officers coming to take over.  He still had a hood on, but it was not on straight, so he could not see anyone.  His cuffs were changed, and he was never uncuffed in the alley, nor was his hood removed.  He made no admission of being a lookout either in the alley or anywhere subsequently.  He did not write a declaration or sign a notebook in the alley, but he was told to admit he was a lookout. Only later at the station did he sign and write in P13 after he had been induced, threatened and assaulted by police officers.

41.  He said he was taken to a search room by PW6 and PW8, where they there took off his cuffs.  He was in that room for over an hour, and when he left it, he saw a clock on the wall showing the time to be 10.50 am.  He was not told of his rights nor allowed to call a lawyer.  He was searched first, then PW8 sat on a chair and wrote in his notebook, P13.  Both PW6 and PW8 tried to convince him to admit the offence.  He was told to admit being a lookout, which was just a minor offence and not serious.

42.  A third officer, Officer Woo, came in and said he was in charge and that the others arrested had already confessed.  The 3rd defendant could give evidence against them for a more lenient sentence.  The 3rd defendant did not agree to admit anything.

43.  A fourth officer, PW7, came in and swore at the 3rd defendant for not confessing.  He showed the 3rd defendant the 1st and 2nd defendants’ confessions in notebooks.  He threatened to torture the 3rd defendant.  He threatened to beat him up.  When the 3rd defendant still refused to admit anything, he punched the 3rd defendant’s left arm twice and his chest once.  The 3rd defendant got scared when his punch to the chest sent him flying against a wall with force.  After that, he wrote out the declaration in P13 and signed it.

44.  When the 3rd defendant was taken back to the report room and PW6 and PW8 left, the 3rd defendant told the duty officer he had been assaulted, but did not say by whom.  That officer took photographs of his bare chest before he was sent to the hospital.

45.  Later that day, after 7 pm, PW8 asked him to sign on his notebook, P13, again.  He took the opportunity to delete the false admission recorded with the pen.

46.  Under cross-examination it was suggested that the red marks on his neck and chest were not consistent with one punch, but consistent with being pushed to the ground whilst running away from the police and pressed to the ground while his hands were cuffed behind his back.  The 3rd defendant disagreed the redness was as a result of his arrest.  He agreed his arms should have shown some injury from the punches, but there were no photographs of his arm.

47.  The prosecution applied, after the defendant gave evidence, to call rebuttal evidence.  I allowed it.  The objections, Exhibit D1, did not give details that the defendant gave when he gave evidence.  He alleges the timings of the prisoner movements from PW6 and PW8 must have been lies because he was in the search room from about 9.50 am to 10.50 am, one hour, where he was threatened and assaulted.

48.  The prosecution called the duty officer, PW10, Station Sergeant 50381, who produced the prisoner movement record, P17.  It shows that the 3rd defendant was handed over to him in the report room at 9.55 am.  He was in custody, in his view, until 10.42 am, when PW8 signed him out.  The 3rd defendant was handed back to him at 10.55 am, some 13 minutes later.

49.  Between 9.55 am and 10.42 am, the 3rd defendant was in a holding area of the report room in front of the duty officer’s desk. This ensures no one can interfere with suspects whilst in the custody of the duty officer.  He denied that the 3rd defendant was in the search room between 9.55 and 10.50 am.

50.  The defendant did not give evidence in the general issue.

51.  The surveillance evidence and evidence of PW1 was not challenged.

52.  PW2’s evidence was only challenged where he said he recognised the 3rd defendant during his surveillance as one of the four men in the four photographs he had been given to watch out for, Exhibit P3.  It was also put to him the man he identified as one of the burglars, the 3rd defendant, was a mistaken identification.

53.  PW3’s arrest of the 3rd defendant was not challenged except where he says he took the hood off the 3rd defendant when he handed him to the CID officers who took over the investigation and he left with his own hood.

54.  The evidence given by PW5 and PW6 of how they had the 1st and the 3rd defendants’ mobiles seized from them and how they ascertained the numbers was not challenged.

The Ruling on the Special Issue

55.  The sole issue to be determined in relation to the post‑recorded admission in PW8’s notebook was the question of voluntariness. The prosecution had to prove beyond reasonable doubt that the admission was made voluntarily, as was the record of it.

56.  In this case, the only question is who I believed.  I was sure, after a careful review of the evidence of both prosecution witnesses and the 3rd defendant, that the prosecution witnesses were telling the truth and gave credible evidence.  I was sure that the prisoner’s movement record produced by the duty officer of the report room, P17, was an accurate record.  It supported PW6 and PW8’s evidence, but not the 3rd defendant’s evidence.  I am sure the 3rd defendant did admit under caution in the back alley of Dundas Street that he was a lookout when he was arrested for burglary.  I am sure the words were uttered voluntarily, and were recorded down almost immediately.  He signed the record voluntarily to acknowledge its accuracy.  He wrote a declaration to this effect.

57.  I do not believe at the station he was taken out of the control of the duty officer either with or without his knowledge and kept in the search room for an hour, where he was induced, threatened and assaulted, resulting in the movement order having to be doctored to show otherwise.

58.  The two photographs, D2, taken of the 3rd defendant’s chest later that morning do show redness, described as “mild erythema over both sides of chest wall” in the medical report, D3.  The redness is spread from the throat or neck area down towards the right side. The area is much larger than the size of a fist.  The defendant’s evidence he was punched once in the chest does not tally with the photograph or the medical report.  It is much more likely the redness came from being grabbed and pushed to the ground face first.  PW3 said he pressed the 3rd defendant down. His chest area would have been in contact with the road.

59.  In the circumstances, after careful consideration of all the evidence relating to the manner and circumstances in which this admission was made and then recorded, I was satisfied as to the voluntary nature of it.  I have considered the submissions made, allegations from the 3rd defendant and his evidence, as well as the rules and directions on the questioning of suspects.  I admitted P13 into evidence.  The prosecution could rely on the admission made.

The Law

60.  The prosecution has the duty to prove all of the elements of the offence beyond reasonable doubt.  The defendant has nothing to prove.  The fact that the defendant did not give evidence in the general issue is not evidence of his guilt and proves nothing one way or the other.  The consequences of doing so does leave the prosecution case enjoying the advantage of not being undermined, contradicted, or explained by any evidence or testimony from the defendant.

61.  The prosecution has to prove the 3rd defendant, together with the 1st and 2nd defendant, jointly committed this burglary.  They have to prove they entered as trespassers part of a building, a shop here, with intent to steal therein.  Obviously, even if one of several burglars keeps watch outside and does not physically step inside the premises, the prosecution can still prove it is a joint enterprise.

62.  The burglary itself is not disputed and referred to in the Admitted Facts, Exhibit P1.

My Findings

63.  The defence submits the evidence of PW1 and PW2, the two surveillance officers, is not enough to prove beyond reasonable doubt the defendant was a burglar.  It was suggested if it was the 3rd defendant described as the third male by PW1 and identified by PW2, then it is possible he was present with an innocent motive or explanation.  It is possible that he ran before he was arrested for innocent reasons, meaning just because he ran away from police officers and did not stop when ordered to by PW3, who had his warrant card out, does not infer guilt.

64.  PW1 and PW2’s actual observations went unchallenged.  The question posed is:  was the man they describe as the third male the 3rd defendant?  Are both officers referring to the same man, and is he the 3rd defendant?

65.  I am sure PW1 and PW2 were honest, reliable witnesses.  There were no discrepancies so serious in their evidence to make me doubt it.  PW1 saw the same third male three times before he was arrested.  He saw him at 6.30 am, when the 2nd defendant opened the shutter and put a bag inside the shop, and it was the third male who lowered the shutter at the switch.  They then all left.  At 6.50, the third male opened the shutter.  The 2nd defendant went in and came out with a bag.  The third male again lowered the shutter.  At 7.39, the 1st and 2nd defendant went inside, whilst the third male stood outside looking around.  Then PW1 watched the operation turn overt and the third male run away towards Dundas Street.

66.  His description of the third man’s clothing, build, height and hat was exactly the same as PW2’s description.  He identified that man as the 3rd defendant from the arrest as well as the photograph given to him earlier.

67.  PW2 described that male he identified as the 3rd defendant as getting out of a silver vehicle at 6.30 am.  He was close enough to see him clearly and identified him as one of the four males in the photographs.  He saw him with the 1st and 2nd defendants in and out of that silver vehicle on several different occasions.  That vehicle did not remain stationary.  He then saw the 3rd defendant get into a white 5-tonne heavy goods vehicle.  He saw the 2nd defendant approach him and talk to him through the window.  He saw the 2nd defendant then walk to the 1st defendant and both walk towards the furniture shop.  He watched the 3rd defendant get out of the heavy goods vehicle and walk towards the same shop.  Within minutes he saw the 3rd defendant arrested.

68.  He confirmed that on that last occasion he did not lose sight of the 3rd defendant from him getting out of the driver’s seat of the white heavy goods vehicle to getting arrested on Dundas Street.

69.  PW3 saw the 3rd defendant running away from his colleagues.  He saw him stopped and subdued.

70.  There was no challenge to the fact it was the 3rd defendant who was running and was arrested by PW3.

71.  Considering the evidence of all three prosecution witnesses, PW1 to PW3, I am sure that there is no misidentification of the 3rd defendant.  I can see for myself that the photograph labelled D73/15#03ROP2003 of Exhibit P3 is a photograph of the 3rd defendant.  I am sure PW2’s dock identification of the 3rd defendant is reliable and unimpeachable. I am sure the man PW2 describes and identifies as the 3rd defendant is the same man PW1 referred to as the third male.

72.  I have carefully considered the identification evidence of PW2 and PW3 and the identical description given by PW1, and find beyond reasonable doubt that the third male referred to was the 3rd defendant.

73.  This is a case where PW2 had many opportunities to see the 3rd defendant, compare him to the photograph, and witness his arrest.  This is not a case of a fleeting glance.

74.  I am sure that the 3rd defendant did tamper with the shutter switch.  He opened and closed the shutter on two separate occasions some 20 minutes apart.  I am sure when the 1st and 2nd defendants went inside the shop, the 3rd defendant was outside, looking around.  I am sure I can infer from what the 3rd defendant did with the others earlier that morning that he acted in concert with the 1st and 2nd defendant to burgle the premises. They were caught red-handed.

75.  I am sure the defendant went on to admit to the police under caution that he acted as a lookout.

76.  There was a common purpose between them to commit this offence.

77.  It was submitted that his presence may have an innocent explanation:  he may have been a delivery man or a transportation worker.  I reject this submission.  It is no more than a bare assertion.

78.  I am sure the conduct of the 3rd defendant described by PW1, 2 and 3 is enough, when considered together, to prove the 3rd defendant, with others, took part together in a course of criminal conduct, a burglary.

79.  The fact he ran from plainclothed men does not infer guilt per se.  However, when PW3 went towards D3 running towards him and said, “Police.  Don’t move,” the 3rd defendant continued to run.  He tried then to brush off PW3 unsuccessfully.  This fact, followed by an admission from the 3rd defendant, is relevant.

80.  The prosecution can rely on PW1 to PW3’s observation of the 3rd defendant’s actions as well as the admission made by the 3rd defendant to prove his involvement and his lookout role.

81.  The prosecution can also rely on the telephone records.  Many calls were made between the 1st and the 3rd defendants between 1 am and 7.30 am to connect the 3rd defendant to the 1st defendant and the burglary.

82.  I am sure the prosecution can prove beyond reasonable doubt the defendant, with others, burgled the furniture shop.  They were intercepted before anything was physically removed from the premises broken into by them.

83.  The 3rd defendant was seen opening and closing the roller shutter at the switch box that had been prised open earlier on.  He was also seen acting as a lookout when the 1st and 2nd defendants went into the premises.  He admitted he acted as a lookout.

84.  The evidence is overwhelming, and the 3rd defendant here is convicted as charged.