HKSAR v. KASHIF AND OTHERS

DCCC 280/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 280 OF 2013

----------------------

----------------------

---------------------

Reasons for Verdict

---------------------

1. The defendants now before the court, the 2nd to the 5th defendants on the charge sheet, face one charge that on 10 January 2013, together with the 1st defendant, Khan Safian, they robbed Jonathan Augusto Lau of a Smartphone at the Kwok Shui Road Park in Tsuen Wan.

2. At the time of the alleged offence, Jonathan Lau was a 16 year old schoolboy.  The prosecution allege that he was using his mobile phone as he walked across the park on his way home just after midnight on 10 January when he was suddenly attacked by Khan Safian, the 1st defendant (who has pleaded guilty to the charge of robbery) and the 5th defendant.  They had both previously been sitting with the other three defendants near a toilet in the park.  Jonathan Lau was pushed to the ground. This resulted in him dropping his phone which was snatched up by the 1st defendant who started to run away.  As Jonathan Lau stood up in order to give chase, his way was blocked by the 2nd, 3rd and 4th defendants and he was assaulted and restrained from chasing the 1st defendant.  It is alleged that after a short while, the 2nd, 3rd and 4th defendants had themselves left Lau and strolled in the same direction as the 1st and the 5th defendants whereupon Jonathan Lau had made a call to the police.

3. The prosecution adduced evidence that less than 20 minutes after the alleged robbery, the five defendants had been located together in Kwong Fai Circuit and that at that time Lau’s mobile phone was found in the 5th defendant’s jacket pocket.  The SIM card that had been in the phone was no longer there and the phone had been reset to a factory setting. The prosecution adduced evidence of the finding shortly afterwards of the SIM card which had been in Jonathan Lau’s phone previously near entrance A of Tai Wo Hau MTR Station.

4. The principal witness for the prosecution was the alleged victim, Jonathan Lau, PW1.  His evidence was that he had left Exit B of Tai Wo Hau MTR Station before entering the park.  His route across the park took him by the public toilet where he noticed that there was a group of five South Asian males.  He described the lighting in the park as bright.  His evidence that the park was well-illuminated is lent support by the lamps visible in photographs P9A (3), (4) and (5).  He admitted that he did not pay particular attention to the South Asian males as he was engaged in using his Smartphone.  His evidence was that initially he was attacked by two of the group of five Asian males whom he identified as the 1st and the 5th defendants.  He admitted that by the time of the trial his memory was unclear as to the exact sequence of the initial attack and which of the two men did what but that when he gave a statement to the police on 10 January he was certain about those matters.  He confirmed his statement that 5th defendant had first approached his left side with his face towards him and grasped his left wrist whereupon the 1st defendant had pushed him hard on the right shoulder causing him to fall to the ground and drop his mobile phone.  When the 5th defendant picked up the phone, he had got up to chase him but was prevented from doing so by the intervention of the three remaining members of the group.

5. As far as this second stage of the attack is concerned, he said that as he stood up, these men had blocked his way.  One had stood in front of him, one to his right and one had stood behind him.  He identified the 2nd defendant as the man who had stood in front of him.  He described how the 2nd defendant had kicked his leg and, when he had tried to move, had punched him in the vicinity of his ear.  He said that the man who stood behind him, whom he subsequently identified as the 4th defendant, had been pulling his upper garment and the man to his right, whom he subsequently identified as the 3rd defendant, had told him not to give chase.

6. In the meantime, the 1st and the 5th defendant had headed off in the direction of Exit A of Tai Wo Hau MTR Station.  After having prevented Jonathan Lau giving chase in the manner I have described, the 2nd, 3rd and 4th defendants had walked away leaving him.  PW1 had then made a report to the police.  The police sent a police vehicle to the scene and subsequently PW1, Jonathan Lau, had been taken in that vehicle to search the vicinity for the culprits.  Evidence was given that as a result of the description which had been given by Jonathan Lau, officers from another police vehicle had located the five defendants less than 20 minutes later.  They were sitting together at a location not far away in Kwong Fai Circuit.

7. PC3774, PW6, who arrived at Kwong Fai Circuit shortly after the five defendants had been located, gave evidence of searching the 5th defendant and finding a mobile phone, Exhibit P5, which Jonathan Lau subsequently identified as his, in the 5th defendant’s jacket pocket.  It has not been seriously disputed that Exhibit P5 was Jonathan Lau’s phone.  I am satisfied that it was.  I am also satisfied that the SIM card which had been in the phone was missing and that the phone had been reset to factory setting. The police accompanied the 1st defendant to entrance A of Tai Wo Hau MTR Station where the SIM card that I am satisfied had formerly been in Jonathan Lau’s mobile phone (Exhibit P5) was found.

8. The five defendants were arrested at Kwong Fai Circuit.  Evidence was given by PC6507, PW5, that after being cautioned, the 3rd defendant had pointed to the 1st and 2nd defendants and said “It is they who robbed, I have no idea”.  PC3774, PW6, gave evidence that after he had found Jonathan Lau’s mobile phone in the 5th defendant’s jacket pocket, he had asked the 5th defendant from where he had obtained the phone and the 5th defendant had said in Punti that he had bought the phone in Tsuen Wan.  I admitted evidence of this remark after a voir dire as to its admissibility. Evidence of these remarks is only admissible in considering the case of the defendant who made them.

9. The same applies to evidence of the video-recorded interviews conducted with the 2nd, 3rd and 4th defendants at the police station the same or the following day.  All three of the defendants admitted being present at the time of the incident involving Jonathan Lau but effectively denied any involvement in any robbery.

10. On 14 January 2013, Jonathan Lau picked out the 1st and the 5th defendant at an identification parade.  I admitted evidence of the identification parade at which Jonathan Lau picked out the 5th defendant after a voir dire as to its admissibility.  It is admitted that at identification parades held on 16 January 2013, Jonathan Lau picked out the 2nd, 3rd and 4th defendants.

11. I turn now the accounts given by the 2nd, 3rd and 4th defendants in their video-recorded interviews. 

12. On the 2nd defendant’s account, he had gone to Kwok Shui Road Park that night with the 1st defendant.  They had met the other defendants and were chatting.  A Chinese man, who I assume to be Jonathan Lau, had come out from the MTR Station and appeared to stare at the 1st defendant.  The 1st defendant had asked him why he was staring at him and the Chinese male had used foul language in reply and had made a remark about Pakistanis.  The 2nd defendant he advised the 1st defendant to “Leave it” but the 1st defendant had approached the Chinese male and a fight had started between them.  During the fight, the mobile phones of both the 1st defendant and the Chinese male had fallen on the ground.  Subsequently, the 3rd defendant had picked up the 1st defendant’s mobile phone and the 1st defendant, thinking that the remaining phone was his own, had picked it up and put it in his pocket and left.

13. The 2nd defendant had joined the 1st defendant and they had gone to the MTR Station in order to go to Kwai Hing.  When they were at the MTR station, they received a phone call from the 3rd defendant and realised that the mobile phone taken by the 1st defendant was that of the Chinese male.  While the 2nd defendant remained in the MTR station, the 1st defendant had gone back to try to return the phone to the Chinese male but had been unable to find him.  After arriving at Kwai Hing they had met up with the other defendants again.

14. When the 3rd defendant was interviewed, he denied that at the time of his arrest he had said words to the effect that the 1st defendant and the 2nd defendant had committed robbery but that he was not involved.  Essentially on his account there had simply been, as far as he was concerned, a fight and his role had been limited to watching that nobody else came along,  (counter 824), and trying orally to persuade the participants to stop (counter 1481) and eventually physically restraining one of his fellow Pakistanis (counter 1496).  He had not seen any mobile phone.  He said that he had gone to the scene of the fight with two friends in order to meet two other friends.  The reason they had gone there was that they had received a phone call from a friend who told them to come there as there would be a fight with a male who had come to the scene and who would be beaten (counter 1264). 

15. As soon as he and his first two friends came to the scene, the victim arrived but he and they said that they would not join in beating the victim as the victim was on his own, (counter 1266).  The other two of their group of five then went ahead and started to beat the victim up, (counter 1453).  He did not know the reason for what he described as “the fight”, (counter 1291).  One of his friends held him while the other beat him up.  After he and his two other friends had tried to stop the fight, the two assailants and the victim ran away.  They too had then left the park to go to Kwong Fai Circuit and just happened to meet up with the two males who had earlier assaulted the victim.

16. The 4th defendant was interviewed under caution between 0141 and 0247 on 11 January.  He said that he had gone out that night with the 3rd and the 5th defendant and had gone to three or four parks with them where they had walked and done some exercises.  They had then met up with two friends of the 3rd defendant, namely the 1st and the 2nd defendants. These two friends of the 3rd defendant had been involved in a fight with a Chinese male.  He did not know the reason for the fight.  His two friends, the 3rd and the 5th defendant, had stopped the fight by telling them not to continue and, while his friends were stopping the fight, he himself was simply sitting on a chair.  After the fight was over, the two friends of the 3rd defendant who had been involved in the fight with the Chinese male left and he and his two friends had left the park heading for an internet establishment in Kwai Chung.  After leaving the internet establishment, they had met up with the 1st and 2nd defendants who had been involved in the fight earlier.

17. The only defendant to give evidence was the 5th defendant and no further witnesses were called by the defendants.  In contrast to the out-of-court statements given by the 2nd, 3rd and 4th defendants which could only be considered in relation to themselves, the evidence of the 5th defendant was evidence that could be considered in relation to all the defendants. 

18. The 5th defendant’s evidence was that while he was present in the park when the incident involving Jonathan Lau occurred, neither he nor as far as he observed, the 2nd, 3rd or 4th defendants had anything to do with what occurred to Jonathan Lau, only the 1st defendant had any involvement.  On his account, he met up with the 3rd and the 4th defendants earlier that evening in the flat that he shared with the 3rd defendant in Tsuen Wan.  The 3rd defendant had received a telephone call and suggested that he and the 4th defendant accompany him to Kwai Chung where he would either collect or receive some money.  The three of them had then walked for 1½ hours until they entered the Kwok Shui Road Park where they came across the 1st and the 2nd defendants whom the 5th defendant had never previously met.  The five of them were together either sitting or standing in front of the toilet.  He and the 4th defendant were sitting while the 1st, 2nd and 3rd defendants had a conversation about work.

19. During the conversation, the 1st and the 3rd defendants had suddenly left the group and started to walk quickly towards a Chinese male whom the 5th defendant now knew was Jonathan Lau.  He then saw the 1st defendant punch or slap Jonathan Lau but could not see anything more as the 1st defendant had his back to him.  He did, however, notice something fall to the ground “and turn into two pieces”.  He saw the 1st defendant pick up one of these pieces and then run away.  Although the 3rd defendant had approached near to the spot where the 1st defendant had punched or slapped Jonathan Lau, the 5th defendant had not noticed him doing anything more than just stand nearby.  He did not hear the 3rd defendant say anything.  When the 1st defendant ran way, he had heard the 1st defendant call the 2nd defendant and the 2nd defendant had run in the same direction as the 1st defendant.  At this point, the 3rd defendant had walked back from where he had been standing in the direction of where the 5th and the 4th defendants had been sitting.  The 5th defendant and the 4th defendant had walked towards him.  They, that is the 5th, the 3rd and the 4th defendants, had then stood chatting.

20. After the 1st defendant had run off, he saw Jonathan Lau pick up one of the pieces of the thing that had dropped on the ground and move a short distance in the same direction as had been taken by the 1st and 2nd defendants before he stopped.  He was shouting something in Chinese.  Jonathan Lau then spoke to a Chinese passer-by before leaving the scene.  He together with the 3rd and the 4th defendants had remained in the park in the same position for 5 to 10 minutes before leaving.  They had walked for about 15 to 20 minutes to Kwai Chung where they went to an internet café where the 3rd defendant had made a telephone call.  Then at the 3rd defendant’s suggestion they had gone to the garden at Kwong Fai Circuit where they had ultimately been found by the police.  They sat on a wall and by coincidence happened to see the 1st and the 2nd defendants again.  The 2nd defendant said that he had asked the 1st defendant about the earlier incident in the Kwok Shui Road Park.  The 1st defendant explained that PW1 had used abusive language and so that he had beaten him. 

21. The 5th defendant said that he had then gone on to ask what it was that had fallen on the ground which the 1st defendant picked up and the 1st defendant had replied that his own phone and PW1’s phone had both fallen to the ground and because they were similar he had picked up the phone that did not belong to him by mistake.  The 5th defendant had then asked the 1st defendant to show him the phone and while it was in his hand examining it the police arrived.  He denied that he had ever put the phone in his pocket or that he had told the police that he had bought the phone in Tsuen Wan.  

22. In assessing the evidence of the 5th defendant and what was said to the police by all the defendants before the court, I have borne in mind that all four defendants are of previous good character in that they have not been convicted of any previous offence in Hong Kong.  That fact is relevant both to the credibility of the accounts they have given and to the issue of whether they are the sort of people who would commit this sort of offence.

23. Neither the account given by the 5th defendant nor the accounts given by the 2nd, 3rd and 4th defendants to the police were consistent with the evidence of Jonathan Lau. 

24. Having heard the evidence of Jonathan Lau, I have no doubt whatsoever that he was an honest witness doing his best to give a truthful account of what happened that night.  I accepted his evidence that he was robbed of his mobile phone that night by a group of males of South Asian appearance who had been sitting or standing outside the public toilet in the park.  In particular, I accepted his evidence that he was initially attacked by two of them, one of whom held his wrist or arm and the other of whom pushed him causing him to fall to the ground and drop his phone.  I was equally satisfied that when he got to his feet, he was assaulted and physically prevented from chasing after the male who was in the course of making off with his phone by other males from the same group.

25. I have borne in mind in assessing Jonathan Lau’s credibility that whereas he gave evidence of having been kicked on the right leg (and seemed unsure whether it was just above or below his knee) and had been punched in the right ear and pushed on the shoulder, Doctor Man Chung-yee, PW10 who examined him at 0456 hours at Yan Chai Hospital made no record of him being kicked but simply recorded that he had been hit with bare hands and that his right shoulder, right ear and left thigh were injured, the only visible sign being a bruise on the right shoulder.  I did not regard these differences as significant.  The doctor admitted that he had ascertained that there was tenderness on the areas to which he referred by means of examination of the patient rather than the history given by him.  He did not notice any redness on PW1’s right leg where PW1 in  claimed that he had been kicked and he did not elicit tenderness on PW1’s wrist or arm but agreed that whether tenderness was later elicited depended on factors such as the mechanism of tenderness and the age of the victim.  A victim could feel instantaneous pain but it could decrease quickly.  That accorded with the evidence of PW1 insofar as the kick to his right leg is concerned.  He described it as a moment of intense pain which did not last long.  It is clear that he had complained of being injured on his right leg earlier, otherwise the photograph Exhibit P9B(3) would not have been taken.  That photograph is of his right lower leg which is consistent with a blow caused by a kick.

26. I will later deal with the reliability of Jonathan Lau’s evidence of the role played by the particular defendants. Jonathan Lau was 16 at the time and a schoolboy. 

27. Having seen him in court, Jonathan Lau has the immature appearance of a young-looking 16 year old schoolboy.  In terms of physique, he would have been no match for any of the defendants.  Even the 1st defendant who I have seen in court and is of a similar age, looked considerably more mature than him.  I accept his evidence that he had not met any of the defendants before.  I have no hesitation in rejecting any suggestion that a young boy of his age and physique while walking alone at night across the park would have started to abuse all or any of the defendants, including the 1st defendant.

28. Equally, I have no hesitation in rejecting the suggestion that he was involved in a fight with the two males who initially approached him or that any other members of the group might have been under the misapprehension that he was involved in a fight with those two males.  I have no doubt that this young boy was simply grasped and then pushed to the ground with the object of stealing the mobile phone he was using as he crossed the park and that would have been obvious to all the defendants.  Even the 5th defendant did not claim to have seen a fight.

29. I turn to my assessment of the 5th defendant’s evidence.  Beyond the fact that he and his four fellow defendants were present at the scene when the robbery occurred, I find I can attach no weight to the evidence of the 5th defendant.  Bearing in mind the youthful appearance of PW1, if as the 5th defendant claimed he did not know the 1st defendant and then seen what he alleged he had seen, namely the 1st defendant striking PW1 and then running off with something that had fallen to the ground, I am satisfied that he would have approached PW1 to ascertain what had happened and would certainly not have continued to carry on chatting for 5 to 10 minutes as though nothing had occurred.

30. I did not believe his account that after walking for 15 and 20 minutes, he and his companions had purely coincidentally come across the 1st and the 2nd defendants in the park in Kwong Fai Circuit.  I found it highly artificial his account of asking the 1st defendant what he had picked up and then, after being told, wanting to examine it.  When first asked why he was interested in looking at it he could only say that there was no special reason.  I accept the evidence of PC3774 that the phone was not in the 5th defendant’s hand but in his jacket pocket which is inconsistent with the allegation that he was examining it. 

31. That the 5th defendant was not a truthful witness was particularly evident when he gave evidence of a conversation he had had with a CID officer who later came to the scene of his arrest.  According to him, the officer had told him that it had been alleged by one his colleagues that the phone had been found in his pocket and the 5th defendant had then told the officer that the phone had been in his hand and that it was not his, that it belonged to his friend, (i.e. the 1st defendant) who the police had taken away.  However, according to the 5th defendant’s evidence in court, the 1st defendant had already told him that the phone was not his.  What is more, according to his account, the 3rd defendant had already told him before the conversation with the CID officer that the police were investigating a stolen mobile phone.  If, as he alleged, the 5th defendant did not know the 1st defendant, there was no reason to try to protect the 1st defendant.  The first thing that would have come into his head, bearing in mind what he said he observed if he was told that the police was investigating a stolen mobile phone, was that that might be the phone that the 1st defendant had claimed he had mistakenly picked up.  I was wholly unconvinced by his attempt in re-examination to extricate himself by claiming that he had simply meant that the phone had come from the 1st defendant rather than it belonged to him.

32. I turn now to my assessment of the identification evidence against the defendants in this case.  I warned myself of the special need for caution in considering evidence of identification and in particular the guidelines laid down by the English Court of Appeal in R v Turnbull.  In this context and in the context of the accuracy of his evidence generally, I have borne in mind that in giving evidence-in-chief, although Jonathan Lau started by saying that the person who pushed him down had snatched his phone, he had gone on to say that the person who had pushed him down was not the person who had picked up his phone.  He identified the 5th defendant who pushed him down and had then pulled him by the arm while a second man picked up his phone and then had made off with it.  Only in cross-examination when he was reminded of his statement did he revert to his first account that the person who had pushed him down had made off with his phone and that that was not the 5th defendant.  The 5th defendant was the person who had first grasped his wrist or arm.  He insisted that the version he had given to the police at the time was the correct version and that he had explained the roles played by those he had picked out at the identification parade.  He said that his memory had by the time of the trial become blurred by the lapse of time.

33. I have also borne in mind the evidence of Doctor Man who says that Jonathan Lau told him that the situation was chaotic at the time.

34. Insofar as the 2nd defendant is concerned, PW1 identified the 2nd defendant at an ID parade on 16 January 2013.  No complaint is made about the conduct of the parade which was the subject of admitted facts.  PW1 was consistent in his evidence and in what he told the police about the role played by the 2nd defendant, namely that he was the person who, after he had stood up, had stood in front of him and blocked his way and had assaulted him to prevent him from chasing the person who had started to make off with his phone.  PW1’s evidence was that when he attempted to pursue the man with his phone, the 2nd defendant had pushed him back and kicked him in the right leg and later, when he made a further attempt to pursue the man with his phone, the 2nd defendant had given him a punch on or near his right ear.  His evidence was that the 2nd defendant was standing right in front of him facing him and he could see the 2nd defendant’s face clearly.  He said that when the 2nd defendant had pushed and punched him, he was only one to two steps away from him. 

35. I was satisfied when considering PW1’s evidence of identification the 2nd defendant, as well as his identification of the other defendants, that PW1’s evidence that the lighting in the park was bright was accurate. 

36. If there was a possibility that the account given by the 2nd defendant in his video interview to which I have referred might be correct then of course I could not be sure that PW1’s identification of the 2nd defendant as the man who had pushed, kicked and then punched him in the vicinity of the right ear could be correct. 

37. While I accept the 2nd defendant’s admission that he was at the scene with the co-defendants is true, I have no doubt that his account of what occurred is untrue.  I am satisfied that Jonathan Lau never abused any of the defendants.  I am satisfied that none of the defendants would have been under any misapprehension that this was simply a fight.

38. Moreover, his account that the 1st defendant had mistakenly believed that he had picked up his own phone is belied by the finding of the SIM card near exit A of Tai Wo Hau MTR Station and the fact that the phone had been reset to a factory setting.  I am satisfied that PW1, Jonathan Lau, correctly identified the 2nd defendant as the person who had blocked his way, pushed him back, kicked his leg and punched him in the ear. 

39. In reaching that conclusion, I have borne in mind that PW1 had described the person who had kicked and punched him as having black shoulder-length hair and that the grey garment he wore had a hood.  PW1 was asked about those matters and I accepted his explanation.  I also took into account that he had not mentioned to the police that the person to whom he was referring had a beard when it is apparent from the photographs that the 2nd defendant did have the sort of beard depicted in those photographs.  Jonathan Lau admitted that his recollection was that the person did not have a beard but even if he had, it was not very thick.  That would be an accurate comment on the 2nd defendant’s beard depicted in the photographs.  I did not regard the fact that he had not mentioned a beard in the description he gave to the police as being significant.  What appeared to me to be significant was if he described the 2nd defendant’s build as being wide and that out of the five men the 5th defendant was the fattest and strongest looking.  From my observation of the defendant in court, that would fit the description of the 2nd defendant. 

40. I am satisfied that PW1’s evidence as to what was done by the 2nd defendant was true.  I am also satisfied that by the time he blocked and then assaulted PW1, he was aware that the 1st defendant had picked up PW1’s mobile phone and had started to make off with it.  I find that he was well-aware that this was not a mistake on the part of the 5th defendant and that he was aware that the 1st defendant was intending to steal it.

41. Although at one point in his cross-examination by Mr Nasir PW1 appeared to suggest that the 2nd defendant had approached him at more or less the same time as the first two men, on the evidence as a whole, I am unable to conclude beyond reasonable doubt that the 2nd defendant was necessarily party to an agreement, express or implied, to rob PW1 prior to PW1 being first approached.  However, I am satisfied at the very least the 2nd defendant physically intervened after PW1 had got up from the ground and the 1st defendant had started to run off with the phone. 

42. It has been argued both by Mr Hemmings for the 2nd defendant and Mr Nasir for the 3rd and 4th defendants that any alleged intervention by their clients at this stage cannot amount to robbery as at that stage the 1st defendant had already appropriated the mobile phone.  The issue for this court is whether, as in the case of R v Hale [1979] 68 Cr App R 415, the appropriation by the 1st defendant was still continuing  when a second defendant forcibly prevented PW1 from pursuing him.  I am satisfied it was.  I am satisfied that what PW1 was trying to do at that stage as he got up from the ground was to prevent the 1st defendant appropriating his phone even that though at that stage the phone was in the 1st defendant’s hand.  I find that the 1st defendant was still in the course of stealing the phone and that the force used by the 2nd defendant was used by him in order to ensure that the offence of theft was accomplished.  I find the 2nd defendant guilty of the offence charged.

43. I turn now the 5th defendant.  I have dealt with the credibility of the evidence of the 5th defendant.  The fact I did not believe his account of what occurred when he gave evidence on the general issue does not mean he is guilty of the offence with which he is charged. 

44. Mr Sutherland on behalf of the 5th defendant challenged the admissibility of two aspects of the prosecution evidence.  (1), remarks allegedly made by him to PC3774, PW6, at Kwong Fai Circuit shortly after he was stopped by the police before and after he was cautioned, in particular in response to a query from the officer as to where he had obtained the white Samsung mobile phone found on him when he is alleged to have said in Punti that he bought it in Tsuen Wan and later after the alleged victim identified the phone to be his property and the defendant had been arrested and cautioned, he is alleged to have pointed at the 1st defendant and said in English, “He gave me the mobile phone”.  (2), The evidence an identification parade held on 14 January 2013 at which the alleged victim picked out the 5th defendant from the parade.

45. The written grounds of objection fell into two categories.  Firstly, an allegation that on the night of 10 to 11 January, (i.e. at least three days prior to the ID parade) the 5th defendant had been assaulted by PC33617 and DPC850 on the police vehicle which subsequently took him for a search at his home and that later, shortly before entering his home, Detective Sergeant 46293 and Detective Sergeant 50337 had assaulted him.  In evidence, the 5th defendant said as a result of these assaults he was in fear and did not raise objections to anything at the identification parade.

46. Secondly, allegations relating to the conduct of the parade: 1) it was alleged that the appearance and age of the 5th defendant were markedly different from the actors on the parade; b) the distinguishing characteristics of the 5th defendant were not neutralised by the officer in charge of the parade, and c) the fact that the defendant was wearing the same clothing as at the time of his arrest was not neutralised.  It was further alleged that the 5th defendant was not asked if he understood Punjabi, the language in which the words of the officer in charge of the parade to the defendant were interpreted to him.  In the course of the voir dire, Mr Sutherland raised further objections to the admissibility of the evidence of the identification parade on the grounds of alleged deviations from the Police Force Manual, Exhibit P20, and/or from the Criminal Investigation Manual, Exhibit P25, the manner in which the parade was conducted and in particular the role played by the officer in charge of the case at the parade. 

47. In considering the credibility of the 5th defendant on the special issue, I bore in mind that he is a man with no previous criminal convictions. 

48. Insofar as the evidence of remarks allegedly made by the defendant to PC3774, PW6, are concerned, the evidence of the 5th defendant on the voir dire was that PC3774 had not spoken to him at the scene. PC3774, on the other hand, said that even before he told the defendant that he was going to conduct a body search on him, he had asked the defendant if he understood Punti and could understand what he was talking about and the defendant had confirmed that he did.  He said that he asked the 5th defendant for his identity card and the 5th defendant had indicated that he had lost his identity card and produced a document purportedly relating to such loss.  He said that after finding the phone in the 5th defendant’s pocket, he had asked the 5th defendant how he obtained the phone and the 5th defendant had replied in Punti that he had bought it in Tsuen Wan district.  He had gone on to ask the 5th defendant where and when he had bought the phone but the 5th defendant did not reply.  The 5th defendant had not been cautioned at that stage.  It was only after the alleged victim had identified the phone that he had arrested him and cautioned him in Punti dialect.  It was then that he alleged the defendant had pointed to the 1st defendant and said in English, “He gave me the mobile phone”. 

49. He admitted that he had not served a POL.153 informing the 5th defendant of his rights at that stage.  He said that that would only be served by the duty officer at the police station.  He also did not ask the defendant if he understood the caution because the defendant had said that he understood Punti.  He gave evidence that he subsequently made entries in two notebooks about what had occurred.  In the first, he had only noted what the defendant had said after being arrested and cautioned.  In the second, he had recorded what the defendant had said earlier.  He admitted that after making these entries, he had not asked the defendant to sign confirming these entries as there was no interpreter available at the police station at that stage.

50. I accepted the evidence of PW6 that he did ask the 5th defendant whether he understood Punti before he conducted a body search on him and that the defendant in Punti had confirmed that he did.  I am satisfied that at the time the officer asked these initial questions, he did not yet have reasonable grounds for suspecting that the 5th defendant had committed an offence.  The phone was simply a white Samsung S3 mobile phone which was on a factory setting.  At that stage it had not been identified by the alleged victim as being his phone.  There was at that stage no need for a caution, still less for issuing a POL.153.  Bearing in mind the officer’s evidence, which I accepted, that the 5th defendant had said that he understood and the initial questions which he posed in Punti to which the defendant had responded, there was no need for an interpreter to be arranged at that stage.

51. While I had no reason to doubt the 5th defendant’s evidence that he had only arrived in Hong Kong in March 2011, I did not believe the 5th defendant’s evidence that he only knew two or three words in Chinese and did not understand the Chinese that the officer was speaking.  I did not find credible his assertions as to the minimal contact he had had with the local population since arriving in Hong Kong.  His answer to the officer that he understood Punti and indication that he had lost his identity card indicated that he at least spoke simple Cantonese.  This was borne out by an answer that he had bought the phone in Tsuen Wan district.  I was satisfied that the defendant’s simply reply that he bought the phone in Tsuen Wan was admissible.  There was no suggestion that this remark was not voluntary.  The fact that he did not ask the defendant subsequently to confirm in his notebook entry of those words because of the unavailability of an interpreter goes to weight not admissibility.

52. Reasonable grounds for suspecting that the 5th defendant had committed the robbery offence arose once the alleged victim had identified the phone.  At that stage the officer arrested and cautioned the defendant in Punti.  I consider it is possible that something as technical as a caution with its accompanying preamble might not be understood or fully understood by someone who had only been in Hong Kong since March the previous year.  In my view, bearing in mind the technical nature of the preamble and caution and the fact that the defendant was a foreigner, the officer should have ascertained whether he understood it.  It was not enough simply to rely on his earlier statement that he spoke Punti and the simple answers that he had earlier given to assume that he understood the caution. For that reason, although I have no reason to doubt the officer’s evidence as to the words subsequently uttered by the defendant in English, I exercise my discretion to exclude the evidence of the words “He gave me the mobile phone” and the accompanying gesture pointing at the 1st defendant.

53. I then turn to the issue of the admissibility of the evidence of the identification parade on 14 January.  Unlike the situation with regard to out-of-court admissions made by a defendant which only become admissible if challenged if the prosecution proved that they were made voluntarily, evidence of an identification is admissible unless the court is persuaded that it should exercise its discretion to exclude it.  See R v Walsh [1987] 85 Cr App Rep 255.  The basis upon which the court has the discretion to exclude such evidence is fairness and in particular its responsibility to ensure that the defendant has a fair trial.  The court’s discretion to exclude evidence if it is of the view that it is prejudicial effect outweighs its probative value is part of this discretion. 

54. It is well-established that this discretion is not to be used for the purpose of exercising disciplinary powers over the police but to ensure a fair trial.  The test of unfairness is not that of a game governed by a sportsman’s code of fair play.  Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused.  However, it is important to observe that in a just society, the conviction of the guilty is in the public interest as is the acquittal of the innocent.  See SJ v Lam Tak Ming HKCFAR 168. 

55. In the context of this discretion to exclude evidence on the grounds of unfairness, it has to be borne in mind that an accused person has a right to not to incriminate himself and the court therefore has a discretion not simply to exclude confessions and admissions improperly obtained from an accused person but also other evidence tantamount to a self‑incriminatory admission unfairly obtained from a defendant.  I would observe at this stage that even if I had been satisfied, which I was not, that the defendant had been unwilling to attend an identification parade which had nonetheless taken place, evidence of that parade could not be equated to self‑incriminatory evidence provided that the parade was otherwise conducted fairly, bearing in mind the court’s ability to attach what weight it thought proper to any identification made.

56. What is particularly relevant when considering the issue of unfairness in relation to the issue of the identification parade is whether there is any possibility that any irregularities might have occasioned a wrong identification which might result in an unfair trial always bearing in mind the ability of the court to take into account irregularities in assessing the weight to be attached to any identification.

57. The first allegation made by the 5th defendant as affecting the fairness of the identification parade are the allegations of previous assaults.  Insofar as the allegation of assaults are concerned, the 5th defendant’s evidence was that after he was escorted into a police vehicle for the purpose of being taken on a house search, DPC850 and PC33617 were sitting on either side of him and assaulted him by holding his shoulder and each punching him in the side three to four times.  As a result he had been crying.  He gave no evidence as to anything said by the officers to him prior to this alleged assault.  It was his evidence that while the assaults were occurring, Mr Tufail Mohammad, PW24, the Urdu interpreter who had interpreted during an earlier interview between him and the police, had been standing outside the window of the car.  After the two officers had left the car, he had complained to the interpreter, PW24, about the assault and the interpreter had smiled and said “They are like that”. 

58. Both officers, PW11 and PW16, denied assaulting the 5th defendant or indeed ever entering the vehicle with the defendant at the relevant time.  The interpreter, PW24, denied seeing any assault on the 5th defendant or indeed any defendant when he was assisting the police.  As far as he could remember, he had not seen anyone crying.  The defendant’s later account of how he had lodged a complaint to the interpreter and the interpreter’s reaction to it was not put to the interpreter in cross-examination.

59. Having heard the officers and the interpreter, I am satisfied there is no truth in the defendant’s allegation of assault in the car that day.  Equally I am satisfied that there is no truth in the allegation of assault by Detective Sergeant 46293, PW22, and Detective Sergeant 50337, PW21, as he was being taken up the staircase to his home.  Both officers denied the assaults alleged.  It was not suggested to them, as the defendant later alleged in his evidence, that they were shaking to prevent him pulling up his trousers in circumstances where he was wearing no belt.  In evidence, he claimed to have told the interpreter, “Tell them I want to pull up my pants, let me do it”.  No question was put to Mr Tufail Mohammad, PW24, about this incident or any enquiry from him as to whether he might have been the interpreter involved.

60. In view of the fact it had not been suggested to the two sergeants that the alleged assaults occurred as the defendant was trying to pull up his trousers, I do not know what comments, if any, these officers might have made about any issue of the defendant wishing to pull up his trousers.  In any event, I am satisfied that even if the shirt of the defendant had been held as he attempted to pull up his trousers, it did not amount to an assault and would not have affected his mind on 14 January, the day of the identification parade. I am satisfied, therefore, that the allegations of assault were unfounded and would have had no influence on the fairness of the identification parade held on 14 January.

61. The second issue related to the issue of language used as or before the parade on 14 January and the defendant’s contention that he did not fully understand what was said to him and the implications of attending the parade.  The 5th defendant has elected to have an Urdu interpreter at his trial and when he gave a video-recorded interview on the evening of his arrest, that interview was also conducted through an Urdu interpreter. 

62. There is no dispute, at least insofar as the identification is concerned, that the interpreter interpreted the English spoken by the officer conducting the parade into Punjabi for the benefit of the defendant. 

63. It is common ground that that interpreter has not been available to give evidence at this trial because he is currently somewhere in Pakistan. 

64. Prior to the parade, the officer in charge of the case, Inspector Wong Ho-ting, PW13, served an Identification Parade Notice to Suspect, P16, on both the 1st and the 5th defendants which the 5th defendant signed.  He gave evidence that he instructed the interpreter to explain the contents of the notice to both defendants whereupon the interpreter had spoken to both defendants for about 5 minutes.  The officer does not speak any Pakistani language so could not give any direct evidence of the language spoken by the interpreter.  When giving evidence in court, the 5th defendant alleged that the interpreter had simply told them that there would be an identification parade and had simply told them to sign the notices and other unspecified documents without saying anything more about the documents.  He claimed that he simply signed although he did not understand the content of the documents because of the earlier assaults on him by the police.  I have already stated that I found the allegations of assault by the police unfounded.  That cannot, therefore, be the reason he signed the document.

65. Insofar as the parade itself is concerned, the defendant alleged that the languages in which he were fluent were Urdu and his native dialect Pahari.  He maintained that he was only able to understand 20 to 25 per cent of spoken Punjabi and only 5 to 10 per cent of Punjabi when it related to legal matters.  He mentioned that he spoke some English, the language spoken by the OC parade but “not much”.  Mr Sutherland argued that because he did not understand fully what was being said to him at the parade, it would be unfair to admit evidence of the parade. 

66. I do not find that the defendant was being frank with the court about the extent of his understanding of the Punjabi and English languages.  Insofar as Punjabi is concerned, it was put to him in cross-examination that on four occasions when he appeared in the Magistrates Court in relation to this case, the interpretation had been in Punjabi.  He claimed that he could not remember whether the interpreter spoke Punjabi on those occasions.  I find this surprising if he had only limited understanding of Punjabi.

67. The prosecution called evidence from the interpreter, Tafal Mohammad, PW24, who had interpreted into Urdu the questions asked of the defendant in his video-recorded interview on 10 January (which the prosecution did not seek to put in evidence.)  His evidence was that despite the questions being translated to the defendant in Urdu, on four occasions the defendant had replied using Punjabi. 

68. When giving evidence in the voir dire, the 5th defendant maintained that these answers were not in Punjabi but in his native Pahari dialect, some words of which were similar to Punjabi.  I viewed his evidence about these four answers with some scepticism but in the absence of evidence from a Pahari speaker could not draw any firm conclusion.  It was apparent, however, by the fact that on a number of occasions during his evidence he was able to say that particular words were the same in Punjabi as in Pahari, that he was not unfamiliar with Punjabi vocabulary.  I was satisfied that his knowledge of Punjabi was greater than he was prepared to admit.

69. I was also satisfied that his knowledge of English was greater than he admitted.  On his own evidence, he had learnt English at school for two years from the ages of 16 to 18 and that the only means of communication with his Indonesian wife to whom he had been married for the past 1½ years was in English.

70. The 5th defendant is not uneducated man.  I am satisfied that had he had any difficulty in understanding what was being said to him before and during the identification parade, he would have asked the interpreter whether he spoke Urdu, a language in which he was fluent.  He admitted that he had not asked the interpreter this question.

71. Moreover, I accepted the evidence of Mr Asim, PW23, the court interpreter, that the defendant had not said anything in Urdu or Punjabi during the identification parade, indicating that he did not understand what was being said.

72. Although the video recording of the identification parade has been played to me, I have not had evidence of whether the interpreter was accurate in translating everything that was being said by the OC parade in English.  I observed that it was not suggested to Mr Asim, PW23, who was asked questions about what was said by the defendant in the recording of the parade, that the interpreter at the parade was not accurately translating the officer’s words.  Even if the defendant had not understood every single word said to him in the parade, I am satisfied, on his own admission, that he understood sufficient to negate any suggestion that the languages used amounted to unfairness.  He admitted that he understood the purpose of the parade.  He admitted that he had been asked in Urdu whether he was willing to take part in the parade and that he had said yes.  He admitted in cross-examination that he understood when the officer had told him he could exclude any of the actors from the parade (although he gave a contradictory answer in re-examination).  He admitted that he understood when the officer asked him if he had any comment on the actors.  I am satisfied that he would have understood the implications of that question.  He said that he understood when the officer asked him whether he needed a lawyer.

73. Insofar as the issue of the appearance of the actors on the parade is concerned, I was satisfied there was nothing in the differences of appearance that could not be taken into account by the court in assessing the weight to be attached to the evidence of the identification of the 5th defendant by the alleged victim.  I was satisfied that both the officer in charge of the case and the officer in charge of the parade had taken reasonable steps to ensure that the appearance of the defendants and the actors was broadly similar.  That included requiring both the defendant and the actors to shave off their beards and requiring the defendant and the actors to remove their shoes and socks.  It is physically impossible to eliminate all differences between the defendant and the actors, that in any event is not required. 

74. In giving evidence in the voir dire, the defendant did not give evidence of any significant difference in appearance between himself and the actors involved, save that he was wearing the same clothing and patched jeans that he was wearing at the time of offence.  In evidence-in-chief, he said that some of the actors were taller and of fatter build than him.  As I have said before, I find I cannot weight to his evidence, save to the extent that I have indicated.  Bearing in mind that the jeans worn by the culprit did not form any part of the description given by the alleged victim to the police, unlike the factual situation in HKSAR v Wong Chi Kwan [2006] 2 HKC 318, and Jonathan Lau’s evidence that it was the 5th defendant’s face that led him to identify him, any significance of the fact that the defendant was wearing the same clothing he was wearing at the time of his arrest could be and was taken into account in assessing the weight of the identification.

75. Mr Sutherland pointed out alleged breaches of the Police Force Manual and criticised the presence of the officer in charge of the case at the parade.  He in particular referred me to the cases HKSAR v Wong Chi Kwan [2006] 2 HKC 318 and R v Gerald Gall [1990] 90 Cr App Rep 64 at 69.  Both cases are distinguishable from the current case.

76. Unlike in HKSAR v Wong Chi Kwan, the clothing worn by the 5th defendant did not form part of the description given by the victim of the robbery nor was it the reason that the police suspected the 5th defendant was involved.  Unlike in the case of R v Gerald Gall where the English code of practice for identification of persons has a statutory basis and specifically prohibited the involvement of officers involved with the investigation of the case taking part in arrangements for or the conduct of the parade, the Hong Kong Police Force Manual has no statutory basis and provides for the involvement of the OC case in arrangements for the parade and permits his attendance at the parade.SHHK

77. Moreover, unlike the situation of R v Gerald Gall, there is no question of the OC case having seen the parade with the defendant in his chosen location and then having had the opportunity of speaking to the witness.  While I cannot help feeling that it would be desirable that members of the investigating team had no involvement in the arrangements for a parade or presence when the parade takes place, I am satisfied that having heard the evidence of the OC case and the OC parade that nothing was said or done to indicate to the witness as to whom he should identify.

78. I am satisfied that insofar as there were any deviations from the procedure laid down in the Police Force Manual, that they had no effect on the fairness of the parade.  I saw no reason to exercise my discretion to exclude the evidence of the identification parades which I found admissible.

79. The 5th defendant was intercepted by the police in the company with the 1st, 2nd, 3rd and 4th defendants about 20 minutes after the robbery occurred.  I accepted the evidence of PW6 that when he searched the 5th defendant at Kwong Fai Circuit he found PW1’s mobile phone in the pocket of the 5th defendant’s jacket.  I accepted his evidence that after confirming with the 5th defendant that he understood Punti and asked him from where he had acquired the phone that the 5th defendant had replied in Punti that he had bought it in Tsuen Wan.  This reply was recorded in the officer’s notebook.

80. While bearing in mind that the 5th defendant was not asked to sign the notebook confirming the accuracy of the entry, I am satisfied that what PC3774 recorded in his notebook was a reliable record of what the 5th defendant had said to him, namely that he had bought the phone in Tsuen Wan.  That statement was untrue.  As I have already said, I found that the 5th defendant’s later and different explanation when he gave evidences in court as to how he came to have PW1’s mobile phone in his possession also to be untrue.

81. Before considering the identification evidence given by the 1st defendant, it is important to bear in mind the strength of the other evidence against the 5th defendant.  Approximately 20 minutes or less after the robbery in which PW1 had said that five South Asian males were involved,  the 5th defendant was located in the vicinity in the company of four other Asian males in Kwong Fai Circuit whom he admitted had also been present at the scene of what I am satisfied was a robbery.  The 5th defendant had in his jacket pocket the mobile phone stolen in the course of the robbery, the SIM card of which clearly had been discarded at Exit A of Tai Wo Hau MTR Station and the phone had been reset to factory setting.  These were circumstances which called for a credible explanation as to how he came to have the stolen phone in his possession if the court was not to infer that he was party to the robbery of the phone.  I have already commented that I find that neither of the two explanations given by the 5th defendant was true.

82. In addition to this very strong evidence implicating the 5th defendant in the robbery, there is the evidence of his identification by PW1 both at the identification parade held on 14 January only four days after the incident and in court during this trial some seven months later.  I have listened to the submissions made by Mr Sutherland regarding the identification parade but I am satisfied that it was conducted fairly.  Both the officer in charge of the case in making preliminary arrangements for the trial and the OC parade were concerned that the participants in the parade should be of the same general appearance, and as I have already said, and for that reason the participants were all clean-shaven and removed their shoes and socks. 

83. Mr Sutherland suggested that some of the actors were taller than the 5th defendant.  Having seen the rather poor quality images of the recording of the parade, it is possible that there may have been some variation in the height of the participants and their clothing but nothing to render the parade unfair to the defendant.  PW1 said that the persons on the parade were similar in appearance.

84. I have considered Mr Sutherland’s submission regarding the patched trousers worn by the 5th defendant at the parade but also find that that did not have effect on his identification by PW1.  As I said when giving a description of the culprits to the police, the 5th defendant had not referred to the trousers worn by the person he had subsequently identified as the 5th defendant and PW1 made it clear that it was the 5th defendant’s face that had led him to identify him.  Elaborate steps had been taken to ensure that PW1 did not see the actors or the 5th defendant before the parade started, there is nothing to suggest that he did.  I am satisfied that no improper indications were given to PW1 suggesting who it was he should identify.

85. PW1’s evidence has been consistent that the 5th defendant was one of the first two South Asian males who approached him. It has also been consistent in that he has always maintained that it was the man who was with the 5th defendant was picked up PW1’s phone.  Where it was inconsistent was alleging in examination-in-chief that the 5th defendant was the person who pushed him down whereas in cross-examination he insisted that the version he had given the police was correct, namely that the 5th defendant had been the man who approached him and grabbed his wrist or arm and that the other man had pushed him down and taken his phone.  His earlier version was a result of his memory being blurred by the passage of time.  At the identification parade, PW1 identified the 5th defendant as the person who had grabbed him by the wrist that day.  He said he recognised his face. 

86. A difficulty that this court has faced as a result of this change of account is not whether PW1 says that he saw the 5th defendant’s face, he has always maintained that he did, but the duration of that observation.  In evidence-in-chief, PW1 gave evidence about noticing the five Asian males sitting by the toilet but not paying attention to them.  He was then asked about the male who approached him and pushed him.  This was the man he said had also pulled his arm to prevent him chasing the person he had taken the phone.  He said that because he was pressing his mobile phone, he did not notice the approach of this man until he was two to three steps away.  This man had then pushed him down.  He said he had been able to see this man for approximately a minute and had paid attention to his appearance and was able to see his face.  He said that he had a further glance at this man’s face when he released his hold on his arm and ran away.  In view of the fact that he was at that stage being asked about the man who pushed him down, I cannot be satisfied that he was necessarily referring to the person who he says was the 5th defendant rather than the person who snatched up his phone. 

87. At another stage in his evidence, PW1 did specifically refer to the 5th defendant.  He said that he remembered seeing the 5th defendant sitting with the group of other males outside the toilet on a chair and that “he was the one who dashed towards me”.  He was not asked to clarify where the 5th defendant was when he first noticed him dashing towards him and whether it was when the 5th defendant was only two to three steps away or a further distance. 

88. Ultimately I am left with the situation that beyond having evidence from PW1 that the 5th defendant was the person who grasped his wrist and that he had seen his face, I have no definite idea as to how long he had the opportunity of seeing the 5th defendant.  I am, however, satisfied that for however long it was, it was in good light.  I have considered whether there are matters that might indicate that PW1 was mistaken in his identification of the 5th defendant.  I have borne in mind that in describing the person who held his arm, PW1 had described him as a South Asian male of around 20 years old, slim build with short black hair, around 1.7 metres tall wearing a dark-coloured knitted hat.  PW1 had made no mention of this man having a beard although it is apparent from the video images I have seen that the 5th defendant appears to have had a light beard that ran over his lip and under his chin.  PW1 admitted that he could not now remember if the person who pulled his arm was clean-shaven.  I did not regard PW1’s failure to mention a beard as being significant bearing in mind the nature of the beard the 5th defendant appears to have had at the time. 

89. As far as age is concerned, it was clear to me that the 5th defendant is older than “around 20 years of age” but it has to be borne in mind that PW1 was saying that the man he identified was wearing a knitted hat.  Hats often make it difficult to give an estimate of a person’s age, particularly if the period of observation is short.

90. Ultimately I have to decide whether there is a possibility that PW1 might have mistakenly identified the 5th defendant as the man who pulled his arm.

91. If there had been no other evidence other than the identification evidence of PW1, I would not have been able to be sure.  However, that evidence has to be looked at in conjunction with all the other evidence to which I have referred, including the fact that the 5th defendant has a markedly different facial appearance to the other defendants.  I have no doubt whatsoever, taking all the evidence into account, that this was not a mistaken identification by Jonathan Lau, PW1, and the 5th defendant was the person who at an early stage of the robbery had held his wrist or arm.  I am satisfied beyond reasonable doubt that he grasped Jonathan Lau’s wrist or arm in order that the 1st defendant could physically steal Jonathan Lau’s phone.  I find him guilty of the robbery charged.

92. As far as the 3rd and 4th defendants are concerned, the prosecution case is that they assisted the 2nd defendant in preventing Jonathan Lau from chasing the 1st defendant who had started to run off with his mobile phone.  It Jonathan Lau’s evidence that when he stood up somebody had blocked his way.  He said that there were three or four people. One of them stood directly in front of him and had assaulted him.  This was the person I am satisfied he correctly identified as the 2nd defendant.  He said that another stood at his right-hand side, but he did not say how closely, and another stood behind him.  His evidence was that the person who stood behind him had prevented him moving by pulling his upper garment and the man who had stood to his right had said words to the effect that he should not chase the 1st defendant.

93. In identification parades held on 16 January, he identified the 4th defendant as the man who had stood behind him and the 3rd defendant as the man who had stood beside him.  The ID parades, as I have said, were the subject of admitted facts and no complaint was made as to the conduct of the parades.  PW1 was unable to identify either of the two defendants in the dock. 

94. PW1 gave evidence that he had a glance of 1 or 2 seconds of the face of the man he identified as the 4th defendant as he walked towards him and that he had had a glance of him for slightly over 1 second when he and his companions had left him.  Insofar as the man he identified as the 3rd defendant is concerned, he said that he saw his face, build and other features as he walked towards him and had looked at his face as he was talking to him. 

95. There was nothing in the respective interviews that persuaded me that PW1’s identification of them as having approached him at the time of the incident was incorrect.  I did not believe their accounts that they believed it was simply a fight with the victim of the robbery, still less the 3rd defendant’s assertion that he had been invited to come to the park because there would be a fight with a male who would come there.  I did not believe the 4th defendant’s account that he was sitting on a chair while the incident was going on.

96. Having said that, there does remain in my mind a lingering doubt as to whether they were involved in the robbery which I am satisfied that they would have known was taking place.  PW1 admitted that he was unable to recall the exact words that the 3rd defendant had used towards him.  In evidence-in-chief, he said that the 3rd defendant had told him not to give chase because the mobile phone had been taken away.  In cross‑examination, he said that he was the one to refer to the phone by asking the 3rd defendant to give back the phone whereupon the 3rd defendant had said “He’s gone far away, don’t chase”.  In re-examination, he said that the 3rd defendant had simply told him not to chase.

97. There is no evidence as to the exact point he was alleging that the 1st defendant had made this remark, in particular whether it was right after he had approached PW1 or after several seconds when the 1st defendant had had a chance to run further away.  PW1 was unable to recall the tone in which the words were uttered.  This leaves open the possibility that knowing that the 2nd defendant would assault Jonathan Lau further if he attempted to chase after the 1st defendant, the 3rd defendant was simply advising him not to bother to chase after the 1st defendant.  When asked whether there was a possibility that the 3rd defendant was simply trying to stop him being assaulted, Jonathan Lau could not exclude that possibility.

98. In evidence-in-chief, PW1 did not give any evidence of any further action on the part of the 3rd defendant and in cross-examination he confirmed that apart from these words the 3rd defendant did not do anything else to stop him.  It was only right at the end of his re-examination he referred to the 3rd defendant “pressing” him when he said these words.  Bearing in mind his earlier evidence and that there was no opportunities for further cross-examination on this point, I did not consider it safe to rely upon it.

99. I therefore consider there is a possibility, however slight, that the 3rd defendant was not a party to a joint enterprise to rob PW1. 

100. Although I am satisfied that PW1 had seen the 4th defendant approach him and leave, he does not say that he saw the 4th defendant actually pulling at his garment, it was an inference on the part of PW1.  Bearing in mind his comment to the doctor that the situation was chaotic and his evidence that he could not be certain how many people surrounded him, I consider it would be unsafe to infer that it was necessarily the 4th defendant who was pulling his upper garment. 

101. Furthermore, in considering the case against the 3rd and 4th defendants, a factor that I have borne in mind is my observation that, to me at least, the 3rd and the 4th defendant appear to bear a strong resemblance to each other.  I could not exclude the possibility that he might have confused their roles.  I accordingly find the 3rd and the 4th defendants not guilty of the charge of robbery.