HKSAR v. KONG KAM WAI AND OTHERS

DCCC 1037/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1037 OF 2011

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REASONS FOR VERDICT

1.  The defendants all pleaded not guilty to the charges two charges before the court. However, in connection with both charges, D2, D4 and D5 indicated that they would be prepared to plead guilty to a charge of common assault. These pleas were not acceptable to the prosecution.

2.  Voir dires were conducted in respect of alleged admissions made by D1 and D3. These admissions were not admitted into evidence and the charges in relation to D1 and D3 were dismissed.

3. Both offences were alleged to have been committed near to Plover Cove Road Tai Po in the New Territories in the early hours of the morning of  18 and 28 June 20011.

4. The 16 year-old victim of the first charge was assaulted by about 5 male youths at about 0100 hours. He was knocked to the floor and after the attack he was unable to find his i-phone he had been  holding in his right hand at the time.

5. The 18 year-old victim of charge 2 was walking across a foot-bridge at about 0210 hours when he was attached by a group of persons. They tried unsuccessfully to grab his mobile phone and then ran off.

6. Minor injuries were sustained by both victims. They were unable to identify their attackers.

Prosecution Witnesses

PW1 Wong Hei Man

7. PW1 told the court that he is aged 16 and a student at a vocational training college.

8. PW1 said that at about 0100 hours on 18 June 2011 he was walking alone near a football pitch at Plover Clove holding his i-phone. He had earlier been playing video games with his friend. PW1 said near the pitch at Plover Clove somebody grabbed hold of his neck with his arm from behind. PW1 said that there were about five males aged about 17 and they kept beating him with their fists. PW1 said he did not recall their faces.  PW1 said that he suffered injuries to his nose, there was swelling and bleeding and swelling on his forehead.

9. PW1 said he was holding an i-phone in his hand. When he was attacked and trying to fend off the blows the phone dropped from his hand on to the ground. PW1 said he heard them say they were going away. PW1 said that afterwards he went to Tai Po police station to report the incident.

10. PW1 said he tried to find the I-phone but he could not find it. PW1 said that it was very dark and he swatted down to try to look for it but could not do so. He tried for  2-3 minutes. PW1 said that at that time there were no other persons in the vicinity.  He said that the attack lasted about one minute.

11. PW1 said after he reported the matter to the police he went to the hospital at Nethersole to report his injuries. PW1 was shown the photograph album, P1 book 1. PW1 said that photograph number 4 shows the area where the attack took place. PW1 said that he went up the steps. Photograph 7 shows where the attack took place.

12. PW1 said that photograph number 10 shows where he was attacked near the low wall walking toward the camera. PW1 said that the football pitch was to the left on the photograph.

13. PW1 said that photograph 12 shows the box of his mobile phone. He said that he had had the phone for approximately 6 months and it cost him about HKD5000 odd.

14. PW1 said that Exhibit P 1-2 is the photograph of his injuries taken at the hospital on the night of the attack. The injuries were to his face. There were bruises to his back which were caused by being beaten to his back.

15. D1 said in cross-examination, that just before the group left he heard one of them say go.

16. PW1 said he had his wallet with him which had money .PW1 said that no attempt was made to steal his wallet.

17. PW1 said he was dressed as shown in P1-2, he was wearing black jeans.

18. PW1 agreed that the location was very dark. PW1 said he did try to run away. He said he lent against the wall. PW1 said that the mobile was black. PW1 said not possible it was on the ground as he tried his best to look for it. He said it might be lost.

19. PW1 said at the time of the attack he was carrying the mobile phone listening to music.. He had an ear piece with a wire form the ear –piece to the phone. PW1 said the ear piece fell to the ground. PW1 said he recovered the ear-piece. PW1 said that his  wallet was in his jean rear pocket.

20. PW1 said he told the police he recovered the ear-piece and he told them he was using it at the time and he was listening using hand free and it was dropped but he recovered the ear-piece.

PW2 Suen Ka Fong

21. PW2 said that18 years old. He is a student at secondary school Form 3. PW2 said that at around 2.10 am on 28 June 2011 he was walking alone along the footbridge at Plover Cove Road Tai Po on his way home. He said he was walking away from a Japanese store called Yat Chi. PW2 said that he was holding his mobile phone and one game player in each hand. PW2 said that he was using his mobile phone but putting the game player into his trouser pocket. PW2 said he was checking something on the screen and whilst doing so he was suddenly attacked by several persons trying to snatch his mobile phone and game player. PW2 said that there were about 5-6 persons. He did not know if  they were male or female or how old they were. PW2 said they beat him and tried to snatch things from him from behind. PW2 said that he was first attacked on his head and then pushed down to the ground. PW2 said they kept kicking him and trying to snatch things from him but they were not able to do that.  PW2 said that the PSP game device was in his trouser pocket. PW2 said he held the mobile phone and when he was pushed the PSP fell from his pocket to the ground and was broken. PW2 said the mobile phone he kept in his hand.

22. PW2 said that the persons beat him and tried to snatch if from his hand with their hands. PW2 said he was able to keep hold of it. PW1 said he held it tight. PW1 said that the game device, someone tried to grab it but he grabbed it first.

23. PW2 said he suffered injuries, bruises to his buttock, his elbow was scratched and his ankle was injured. PW2 went to hospital for treatment. Medical report P3.

24. PW5 said that he could recall one wore white upper garment and blue jeans. He was aged about 18-20.

25. PW2 said that P1 Book number 3 shows the footbridge on which he was walking, photo 2 shows the place where he was attacked. PW2 said he was walking away from the camera towards the direction of Tai Po Centre which one can see in photograph 3 in the distance away from the camera. PW1 said that the persons who attacked him ran towards Plover Clove Road away from Tai Po Centre. PW2 said that Plover Cove Road is behind the cameraman.

26. PW2 said the strip lights on the bridge were on, the lighting was not too bright. PW2 said that he only saw the backs of the attacker. PW2 said he could see clearly where he was heading and all around him. He said he was focusing on his mobile phone all along when he was on the footbridge. PW2 said he noticed a group of people walking towards him, they were the same persons who attacked him. PW2 said he was near the staircase he noticed persons coming up the staircase towards him up the staircase in photography 3, PW2 said he was walking towards the staircase towards Tai Po Centre, when they go there they were at the top of the staircase to his left. PW2 said he did not look at them. PW2 said there was no one else on the foot bridge.

27. PW2 said he walked past them and they approached him from behind. PW2 said that he had his mobile phone in his hand and his PSP game device in his left front pocket. PW2 said he had keys and money. He had no ID card. PW2 said he had come back from his friend’s home. PW2 said that they attacked him from behind all of a sudden. PW2 said his game fell to the ground from his pocket. PW2 said it was a big pocket and he fell to his front and it fell out. PW2 said he kept hold of his mobile. PW2 did not tell the police that it fell to the ground.  PW2 was shown his statement which said the phone fell to the ground and he picked it up immediately. PW2 said the statement is not correct and what he told the court is right, the phone never fell to the ground.

28. PW2 said no one said anything when he was being attacked but after the attack someone said “unable to snatch it, go!” PW2 said he did not tell the police that as he was not asked. PW2 denied that he made this up. PW2 said he said nothing, he shouted help.

29. PW2 said he was unable to say if the attackers were male or  females. PW2 agreed he told the police they were males. PW2 said that he is now unable to say if they were all males as it was so long ago.

30. PW2 said he described one of them to the police, the upper garment and jeans colour of one of them. PW2 said that the police wrote that down. PW2 said he saw the back of one of them with white shirt and dyed blond hair aged 18.  PW2 said he did tell them about the trousers. PW2 said that he did not know why they did not write it down. PW2 said that he was telling the truth.

PW3 Chow Ngai Yung – Chain of CCTV

31. PW3 told the court that he is a customer service assistant of Tai Po Mega Mall. In June 2011 he also worked there.

32. PW3 said that photograph P1 -3(3) shows a footbridge outside mega mall, it brings one into Zone B of mega mall from Zone E.

33. PW3 said that on 4 July at 4.15pm he handed over a CCTV disc of the mega mall to DC5305. PW3 said these photographs came from the disk. PW3 said he recognized photograph one is outside DSC (Direct Sales Centre) in Zone E and same for Photograph 23. PW3 said that Photograph 4 is outside Circle K which is on the right hand side of DST. Photograph 8 is a fire safety door by the side of Bank of East Asia ATM which is in front of the Circle K convenience store. PW3 said that this leads to the first floor of Zone E.

34. Photograph 3 of  Book3, PW3 said this is near the photographs in photograph 4, they are close about 30-50 metres away.

35. PW3 said the cameras which took the pictures cannot be seen in photograph 3 book 3.They are outside DSC, the Direct Sales Centre. PW3 said that DSC cannot be seen from this picture in photograph 3. PW3 said that DSC is on the side of the photographer about 20 meters from where this photograph was taken.

36. PW3 said that photograph 5 shows the footbridge which is about 40-60 metres. It crosses the Lam Tsuen River and  Tai Wo Road.  About 8-10 metres in width.

37. PW3 said that before 4 July he did show CCTV clips to the police; he said that that occurred at some time after  2.00am on 28 June

Admitted Facts Ex P17

D2

38. It was admitted that D2 was arrested at 0143 on 29 June 2011 o Plover Cove Road. After caution he admitted assaulting PW1 and PW2 but denied that he robbed them or attempted to rob them. A post record of his arrest and caution was produced as P12.

39. In a later video recorded interview, P13, D2 repeated that he was involved in assaults on PW’s 1 and 2 but denined involvement in any robbery.

D4

40. D4 was arrested at 1.46 am om 29 June 2011 out sided the Wong Siu Ching Clinic. He was with D5 and other arrested person. As with D2 had admitted assaulting the victims but denied robbing or attempting to rob them.  A post record of his admission on arrest and a video-recorded interview were produced as Exhibits P14 and P15.

D5

41. On 29 June 2011 at 1904, a video-recorded interview was conducted with D5 and produced as P16. As with the other defendants, D5 admitted assaulting the victims but denied robbing or attempting to rob them.

42. The voluntariness of the admissions were not challenged and I was not invited to exercise my residuary discretion to exclude them.

Directions

43. I reminded myself that the prosecution are required to prove each and every ingredient of the offences beyond reasonable doubt and that the defendants have nothing to prove.

44. I reminded myself that I have to consider the case for and against each defendant separately.

45. The defendants have clear records which is relevant to the issues of credibility and propensity. A person with a clear record is more likely to be telling the truth and less likely to commit and offence. I bore this in mind when assessing their admissions that they were involved in assaulting the victims but denied that they  robbed or intended to rob them.

46. I reminded myself that where the prosecution rely on circumstantial evidence, the court can only draw an inference from facts proved beyond reasonable doubt and that such in inference must be the only inference that can be drawn, it must be an irresistible inference.

47. The prosecution case in relation to each charge was that the defendants were engaged in a joint enterprise to commit robbery. Where two or more persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise. However, if a participant in the joint venture goes beyond what has been tacitly agreed as part of the common enterprise the other participants are not liable for the consequences of that unlawful act. I bore in mind that the existence of a joint enterprise and the defendant’s participation in it must be proved beyond reasonable doubt.

Evaluation of the evidence

48. I found PW1 and PW2 to be reliable and credible witnesses.

49. The first incident took place at about 0100 hours at  the pavement of the park at Nam Wan Road, near the Plover Cove Road football pitch. PW1 was walking home carrying his 3 G Iphone which had been purchased some 6 months before the incident for HKD5000. PW1 said that he was carrying the mobile in his hand and listening to music using an ear-piece attached to the mobile.

50. PW1 said that he was attacked from the rear by a group of five males aged about 17. PW1 said that he was first grabbed with an arm round his neck from behind. He said that he was then attacked with fists for about one minute and when trying to fend off the blows his I-phone and ear piece dropped to the ground. PW1 said that he later heard them say they were going away.

51. PW1 said that the location where the attack took place was very dark. PW1 said that after the youths left he spent 2-3 minutes trying to locate his phone. He said he recovered the ear piece but could not find the phone.

52. In their records of interview each of the defendants maintained that PW1 had given them a hostile stare and they decided to hit him out of fun. PW1 said that he had never seen the group before and that the attacked him from the rear. I was sure that there had been no hostile staring by PW1 and that was not the reason they followed PW1 to a dark and secluded place.

53. PW2 said that he was attacked at 0210 on 28 June 2011hours whilst walking across the footbridge of  Plover Cove Garden. Photographs of the bridge were produced as P1- Book 3 which shows that the bridge is covered with strip lights along the middle of the bridge. PW2 said at the time of the incident the lights were on. PW2 said that just before the assault he was holding a mobile phone in one hand and his game player in his other hand. PW1 said that at the time of the  attack he was using his mobile phone and was in the process of putting his game player into his trouser pocket. PW2 said that the attack took place very suddenly. He said there were 5-6 persons but he did not know if they were male or female or how old they were. PW2 said that they beat him and tried to snatch things from him and he was pushed down to the ground. PW2 said that his game player fell out of his pocket to the ground. He said one of the attackers tried to grab the player but he grabbed it first.

54. PW2 said that he notice the group who attacked him coming up the stairway to the walkway when he was walking towards the staircase. He said that he did not look at them and there was no one else on the footbridge. PW2 said that in addition to the phone and game player he had keys and money.

55. PW2 said that no one said anything after during the attack but afterwards someone said “unable to snatch it. Go!”. PW2 said that he did not tell the police this as he was not asked.

56. Again the defendants claimed that the motive for attacking PW2 was because he stared at them and that they hit him “out of fun”. D5 said that PW2 “ glared a hostile look”. D5 said that they saw PW2 when he was walking on the footbridge and  they were walking under the footbridge and they walked up the stairs to the footbridge to hit him. The version is constent with that of D3. D2 claimed that they hit him on the spur of the moment out of fun. D2 said that they wall went up the stairs to the bridge to hit PW2 but  D2 did no know why they did so. He said that he only “pressed him”. None of the defendants mentioned that PW2 was holding his mobile phone or that his game player fell to the ground. None of the defendants mentioned anyone shouting “ unable go snatch, Go!”

57. I was sure that D2, D4 and D5 were lying as to the reason they attacked PW1 and PW2. I was sure that neither PW1 nor PW2 stared at the defendants as some of them claimed. None of the defendants refer to either victim holding a mobile phone at the time of the assaults.

58. The fact that I disbelieve what the defendants told the police does not mean any of them are guilty of either of the offences. I have to consider the evidence I do accept and decide it that satisfies me of the guilt of the any of the defendants to the required standard.

59. Having considered all the circumstances of the offences, I was sure that neither of the victims had stared at the defendants as alleged. I was sure that the defendants would have noticed that each of the victims was holding a mobile phone at the time of the attack. PW1 spent 2-3 minutes searching for his phone after the attack and was only to able to recover the ear-piece which had been attached to his phone.

60. 11 days later the same group of youths, in the same area, again in the early hours of the morning  approach another youth walking alone carrying his mobile phone in his hand. I was sure that the attackers made a concerted effort to grab his phone but failed to do so. I was sure that the group only desisted when one of them shouted “unable to snatch, Go!”.

61. Having considered all the circumstances I was sure that the motivation for each of the attacks was to steal the mobile phones of the victims. I was sure that all three defendants were knowingly parties to these joint enterprises and I convict them accordingly.