HKSAR v. SO HIU SAN

DCCC 549/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 549 OF 2016

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Reasons for Verdict

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1.  This trial originally involved six defendants and three charges. On the first day of trial there was a reamended charge sheet submitted. Charge 1 involves a theft, contrary to section 9 of the Theft Ordinance, which charged the 5th and the 6th defendant with the theft of an iPhone on 22 March 2016 near a public toilet of Sheung Shui Tung Hing Road, Sheung Shui, New Territories.

2.  Charge 2 is an attempted robbery, contrary to section 10 of the same ordinance, on 23 March 2016.  This offence was committed by the 2nd, the 3rd, the 4th, the 5th and the 6th defendant near Cambridge Plaza, 188 San Wan Road, Sheung Shui, New Territories.

3.  Charge 3 was also an attempted robbery offence. It occurred on 24 March 2016, committed by the 1st, 2nd, 3rd, 5th and 6th defendant outside the public toilet of Charge 1 in the same area of Sheung Shui.

4.  Before trial, the 2nd and 3rd defendant pleaded guilty.  Months ago, the 2nd defendant gave the police a non-prejudicial statement and wanted to give evidence on behalf of the prosecution.  The 3rd defendant was sentenced to training centre on 26 September 2016.  He was 15 years old at the time of the offences.  On the first day of trial, 3 January 2017, the 6th defendant pleaded guilty and wanted to give evidence on behalf of the prosecution.  After he gave a non-prejudicial statement, he was listed as a prosecution witness.  Subsequently, the 4th defendant then changed his mind and pleaded guilty as well.

5.  The trial proceeded against the 1st and the 5th defendant.  The 1st defendant faced Charge 3 only, and the 5th defendant faced all three charges.

6.  The evidence against the 1st defendant involved a challenged video-recorded interview under caution containing admissions of Charge 3.  The 2nd and 6th defendant also gave evidence against the 1st defendant implicating him in Charge 3 with them jointly. 

7.  There was no admission from the 5th defendant, so the only evidence incriminating him was the evidence of his accomplices, the 2nd and the 6th defendant.

8.  The 1st defendant pleaded guilty after I admitted the video-recorded interview into evidence after a challenge to its admissibility and voluntariness.  He reversed his plea after the prosecution closed its case.

9.  The 5th defendant elected not to give evidence after an unsuccessful submission of no case to answer after the prosecution closed its case for Charge 2 and 3.  The 5th defendant was acquitted of Charge 1 at this same stage.

The Issue against the 5th Defendant

10.  The prosecution relied on the two accomplices, the 2nd and the 6th defendant, to incriminate the 5th defendant in all three charges.  The issue here is whether or not they are credible and reliable.  Can the prosecution prove beyond reasonable doubt that the 5th defendant was part of the joint enterprise to attempt to rob two victims on two consecutive evenings?  In addition, the defence rely on the presumption of doli incapax.

11.  The 5th defendant was 13 years 11 months and 1 week old at the time of the offences.  In short, he was three weeks off his 14th birthday.  There is a presumption that is rebuttable to the effect that between the ages of 10 to 14, a child is presumed to be doli incapax.  That is, incapable of guilt or committing a crime with criminal intention or malice. The prosecution needs to rebut this presumption and prove that the 5th defendant, a child under 14, if he did commit these criminal offences, knew that what he did was something that was wrong.

The Prosecution's Case

12.  There was no challenge to the fact for Charge 3, PW2 was the victim a group of young men attempted to rob.  She gave evidence of walking home alone at about 8.45 pm on 24 March 2016.  It was raining, and she held up an umbrella whilst pulling a trolley case with her handbag hooked on its handle.  Suddenly she was struck from behind.  An iron bar hit her umbrella at least twice.  Her arm pulling her suitcase was hit three times with a pipe.  She saw five youngsters trying to rob her.  She resisted them and shouted for help.  They dropped two bars, and all five fled together.

13.  The police later seized the bars.  She was taken to hospital for treatment.  She could not identify any of them, as it was dark.  She was sure there was an attempt to snatch her bag.  Her evidence was not subject to challenge.  It is not in dispute she was a victim of an attempted robbery by a group of young men.  The question is was the 5th defendant amongst them?

D2 and D6

14.  The 6th defendant, PW6, was 17 years old at the time of the offences - he is now 18 - and had a clear record.  He gave evidence of the theft of 22 March.  He mentioned the presence of the 5th defendant, but agreed only he and "Ah Wan", the 3rd defendant, actually snatched and ran off with the victim's phone.  Only they shared the proceeds of the stolen phone.

15.  I found the evidence for this charge too weak to convict, so I acquitted the 5th defendant of Charge 1.

16.  The 6th defendant gave evidence of Charge 2, an attempted robbery of an unknown man the day after Charge 1, 23 March, by five of them, all equipped with a metal pipe. He said earlier that day a group of them had gone to a hardware shop in Sheung Shui.  "W", who is the 4th defendant, and the 2nd defendant went inside the shop to buy five pipes.  The 6th defendant said he waited outside the shop.  They bought pipes to protect themselves during the course of a robbery as discussed.  During this discussion, he says there were a total of five of them present.

17.  He went on to say that five of them hid the pipes in their clothing before they found a victim to target.  He could recall the identity of four of the five present at the robbery.  At first he did not name the 5th defendant as the fifth robber as expected.

18.  A man with luggage was targeted.  He was hit on the back once with a pipe, but he turned to challenge the robbers.  He told them that they had "picked the wrong victim".  They all fled the scene. 

19.  The police knew of this attempted robbery from accomplice admissions, not from the victim himself.  The 6th defendant described in-chief the fifth robber as a stranger he had not seen before. However, it was put to him by counsel for the 1st defendant that he had clearly named the 5th defendant as the fifth robber in his statement to the police.  The 1st defendant's counsel wanted him to confirm he had named the 5th defendant to discredit him as a witness.  The 6th defendant then agreed in cross-examination that it was the 5th defendant who was the fifth robber. He had forgotten earlier but now recalled it was the 5th defendant after prompting.  He said he had temporarily mixed up the robbers, and because he could not recall it was the 5th defendant in-chief, he decided to say the fifth person was a stranger.

20.  He gave evidence that on 24 March, the day after Charge 2, there was another plan to rob again.  In-chief he said that the group discussed the next robbery whilst at a housing estate in Fanling that afternoon.  He said the 5th defendant was present then.  However, in cross-examination he agreed that the 5th defendant met them later in a park in Sheung Shui and was not in Fanling earlier as he had said in-chief. The 6th defendant said that the plan was that they were to retrieve the metal pipes they had hidden after the robbery attempt of the day before.  After that, they then went to Sheung Shui Wai to a park to wait for the 5th defendant.  After that, they were in the park for an hour before they went to look for a victim to rob.

21.  Subsequently, all five of them, including the 5th defendant, walked around looking for a victim.  He said that he, the 1st defendant and the 3rd defendant discussed who would do what.  He said the 2nd and the 5th defendant were present during this discussion.  The 6th defendant was to make the first move, followed by the 1st and the 3rd defendant.  The 5th and the 2nd defendant were to be lookouts, and both agreed to this role.

22.  When PW2 was identified as a victim and the 6th defendant approached her from behind, he said the 5th defendant stood on a slope nearby to act as a lookout.  The 2nd defendant was with him on the same slope.  In cross-examination it was put to the 6th defendant that the 5th defendant was only waiting for him and the others, and that he did not act as a lookout for the robbery.  The 6th defendant denied that this was the case.  He did not agree that the 5th defendant was only present nearby, not part of the joint enterprise to rob PW2.

23.  The 6th defendant denied the 5th defendant tried to leave earlier to go to a birthday party, but only waited for the 6th defendant at his request.  He denied the truth was that the 5th defendant waited for the 6th defendant to do what he had to do, and then ran away with him and the others.  He denied they ran to a shop, where the 5th defendant asked the 6th defendant to then go to the birthday party with him.

24.  The 6th defendant also agreed, when pointed out to him, that he had said in his video-recorded interview under caution - at counter 268 he had said the 5th defendant was not there on 23 March.  But in re-examination, he agreed that in the same video-recorded interview at counter 544, he told the police that he had forgotten, and that the 5th defendant was in fact there on 23 March.

25.  He did agree in cross-examination to the accusation that his memory was not good, and he was sometimes confused, without specifics being put to him.  He did say that despite this, he knew what he had done and who else was there.  The 6th defendant also stressed he was not very educated and that questions put in cross-examination were hard and he did not really understand what he was being asked.  It certainly did seem at times he struggled to comprehend and took time to answer, in particular, the 1st defendant's counsel's questions.

26.  The 2nd defendant, PW7, gave evidence of the attempted robberies of 23 and 24 March, having been part of this joint enterprise.  He said five agreed to rob to help the 3rd defendant repay a debt he owed.  There was a suggestion they buy pipes to arm themselves with. The 2nd defendant said they went to a hardware shop and all paid $10 each for a pipe.  The 2nd defendant waited outside the shop whilst payment was made.

27.  The 2nd defendant said five of them were involved, but he could not recall the identity of two of them.  The prosecution established that he made a non-prejudicial statement to the police in August 2016, five months after the offence date.  He agreed when he made it, the matters of 23 and 24 March were fresh in his mind.  I allowed him, despite strong objections, to refresh his memory from his statement at the prosecution's request.  He then recalled the 5th defendant was one of the five and had also paid for and possessed a pipe.

28.  After buying water pipes, the five went to Sheung Shui Wai to look for a target.  Near Cambridge Plaza the 6th defendant chose a man and hit his back from behind.  When he confronted the five robbers, they fled the scene.  The 2nd defendant said the plan originally was for the 6th, the 4th and the 3rd defendant to hit the victim.  The 2nd and the 5th defendant were meant to then come forward and snatch his valuables.  He said they did rush up behind the 6th defendant as he hit the victim, but when the 6th defendant ran away, they all ran at the same time.

29.  The 2nd, 3rd, 4th and 5th defendant jumped into a taxi, whereas the 6th defendant went his own way.  The 2nd defendant said the four of them discussed what they would do the next day.  This was his evidence of Charge 2 on 23 March.

30.  The 2nd defendant's evidence was that on the next day, 24 March, there was a plan to go to Sheung Shui Wai to find another target to rob.  They went there at about 7 pm.  He said the 5th defendant was with them then, as he was earlier that day when the suggestion to rob someone came up.  The 1st, the 3rd and the 6th defendant had pipes hidden from the day before's attempted robbery.

31.  The plan was that they were to hit the victim, and the 2nd and the 5th defendant were to snatch from the victim.  He saw the victim hit with the pipe, but she resisted.  He and the 5th defendant did nothing - could do nothing - before the group ran away.  The 2nd and the 5th defendant also ran from the scene.

32.  The 2nd defendant agrees afterwards he and the 5th defendant went to a friend's birthday party.  The 6th defendant did not go with them.  He went his own way.

33.  In cross-examination, the 2nd defendant, PW7, agreed with the 1st defendant's counsel that his memory was poor.  He had confused events, and when he made his non-prejudicial statement five months after the offences, the matters were not clear to him.

34.  The 2nd defendant agreed to almost every suggestion like that put to him.  He agreed he was not sure who was present during the attempted robberies.  He agreed he was not sure who was involved. He was given the following examples.  He said in his non‑prejudicial statement that "W", the 4th defendant, paid for the iron bars, as did the 6th defendant, but said in court he was not sure who paid.  In his non-prejudicial statement he said he was inside the shop with the 4th defendant, as did the 6th defendant, but said in court he was at the door of the shop outside.

35.  In re-examination, when his memory issues were clarified, he said he was not confused about who was there on 23 and 24 March, but he was not clear about small details from those dates.  The 5th defendant's counsel put to the 2nd defendant that he had relied on his non-prejudicial statement to make allegations against the 5th defendant, and he agreed.  He then put to the 2nd defendant that maybe details of his non-prejudicial statement were mistaken, and he agreed.  He agreed when it was put to him the 5th defendant was not a lookout that evening of 24 March. However, he later said he was telling the truth when he said he and the 5th defendant were waiting to try and snatch from PW2, but they could not reach her because of her strong resistance.

36.  The 2nd defendant was 14 years old at the time of the offence - he is now 15 years old - and had a clear record.

The Law

37.  The prosecution has the burden of proof, as always, and must prove all the elements of the charges beyond all reasonable doubt.  The prosecution’s case is that the attempted robberies were joint enterprises and that the 5th defendant was a knowing participant in both of them.  The prosecution relies on the 2nd and the 6th defendant to prove it.

38.  The defence do not argue the fact that there were two attempted robberies and it was a joint enterprise by at least four or five young men.  The defence case is that the 2nd and the 6th defendant are not credible and do not prove to the prerequisite standard that the 5th defendant was part of this joint enterprise.  It was put as the defence case that the fifth male of the robbery of Charge 2 was a stranger, and therefore by implication not the 5th defendant.  It was the defence case that on 24 March - Charge 3 - he was merely present and waiting for the other defendants to go to a party.

39.  I found there to be a prima facie case after a submission of no case to answer for Charges 2 and 3, but not Charge 1.

40.  The 5th defendant has a clear record, and I have warned myself accordingly.  I have directed myself in accordance with the requisite directions set out in the authority Tang Siu Man v HKSAR [1998] 1 HKC 371.

41.  The 5th defendant elected not to give evidence, which is his right.  It is in no way an indication of guilt.  It proves nothing one way or the other.  The consequence of doing so is to leave the prosecution case enjoying the advantages of not being undermined, contradicted or explained by any testimony from the 5th defendant.

My Findings

42.  I carefully considered the evidence of the 2nd and 6th defendant, PW6 and PW7.  I treated their evidence, bearing in mind they were accomplices, with extreme caution.  I paid particular attention to their demeanour and how they answered questions.  I also took into account that the 2nd defendant was 15 and the 6th defendant 18 at the time of giving evidence, and both previously were of clear record.

43.  The 2nd defendant, in particular, was very nervous when he entered the witness-box.  Nonetheless, when an accomplice gives evidence for the prosecution, there is an element of self-interest on their part, and their evidence must be carefully scrutinised.

44.  I have also considered defence counsel's submissions, in particular pertaining to the credibility and reliability of these two witnesses' evidence.  Then there is the additional submission that the prosecution has not rebutted the doli incapax presumption applicable to the 5th defendant as he was under 14 at the time of the offences.  The prosecution does not disagree that such a presumption exists here, but submits the evidence called of the actions taken before, during and after the offences more than show the presumption is rebutted where the 5th defendant is concerned.  This is bearing in mind he was only several weeks away from his 14th birthday.

45.  There were discrepancies in the 2nd and the 6th's defendants' evidence as to what role they said the 5th defendant played in the attempted robbery of Charge 3, 24 March.  The 2nd defendant said the plan was that he and the 5th defendant were to hang back whilst the 1st, the 3rd and the 6th defendant bashed the victim chosen.  They were then to come in from behind and snatch valuables.  The 6th defendant said that the 2nd and the 5th defendant stood together nearby on the slope and that the 5th defendant’s role was one of a lookout.  He was to see if anyone approached the group, and if there was, then the group would leave the scene.  He described the definition of a lookout.

46.  However, both did say that when in Sheung Shui Wai at about 7 pm before they looked for a target, the 5th defendant was with the group.  Both say that the five of them walked around together looking for a target.  Both agree it was the 1st, 3rd and 6th defendant that discussed the plan to rob and decided who would do what.  The 5th defendant did not discuss or make decisions.  Both agree he was present when it was a discussion, then walked with the group when they went to look for a target.

47.  As for Charge 2, on 23 March, the 2nd defendant gave more details of the 5th defendant's role than the 6th defendant did.  That may be because he had the same role as the 5th defendant.  After the 3rd defendant told the group of five, including himself and the 5th defendant, that he owed a debt and needed money, the 2nd defendant said they all agreed to snatch to help him repay his debt.

48.  Both say all agreed to the suggestion to arm themselves with a pipe.  The 2nd defendant specifically recalls they all paid the cost of $10 each for a pipe.  That is quite a specific fact and recollection.  Both witnesses say the 5th defendant was present when the five pipes were purchased.  Both witnesses say the 5th defendant was present when the unknown victim was chosen as a target, and ran with the group when the victim scared them away.

49.  I have taken into account both witnesses were clearly reluctant to name the 5th defendant as an accomplice when they were in the witness-box.  The 6th defendant only recalled he had named the 5th defendant in his non-prejudicial statement when he was shown it, where he discussed the 5th defendant's role.  Similarly, the 2nd defendant only recalled he had named the 5th defendant in his non-prejudicial statement when he was shown it to refresh his memory.

50.  Their reluctance, as opposed to genuine memory lapse, can be understood.  The group are friends, and they would be testifying against a friend if they named him in open court.  Their reluctance does not translate to unreliability.  This reluctance does not mean, I am sure, they forgot the 5th defendant's involvement or were framing the 5th defendant when they eventually named him after prompting.  They named him as being an accomplice in their statements, but hesitated when they had to name him in the witness-box.  That hesitation can be natural bearing in mind their ages, their friendships, and peer pressure.

51.  As I have said, the 2nd and the 6th defendant did give the 5th defendant different roles in the offences, but whether a lookout or part of the snatching, they are roles that point to participating in the joint enterprise.  Again, this difference, when I take into account their ages and demeanour in the witness-box, does not indicate to me a collusion to or attempt to frame the 5th defendant.

52.  I accept that both witnesses agreed to the suggestion or accusation they had poor memories and were confused.  Counsel for the 1st defendant did not specifically allege what facts they were confused about or had forgotten.  What is important is that despite those answers, they did say, in the 6th defendant's case, that he could recollect clearly what he did and who was there when he did it.  In the 2nd defendant's case, he said that he was confused or unclear of small details, but not confused as to who was there during the offences of Charge 2 and 3.

53.  After careful consideration, I believed their evidence against the 5th defendant.  After considering the discrepancies, their ages, their previous clear records, and their demeanour in the witness-box, I am able to find them credible and reliable.

54.  I find despite them being accomplices, the 2nd and the 6th defendants' evidence convinces me the 5th defendant knowingly participated in two attempted robberies on two consecutive days with other defendants in a joint enterprise.

55.  Collectively they convinced me of this.  They do support each other.  I reject the defence case that the 5th defendant was only merely present on 24 March and not involved at all on 23 March.

56.  There is the question of whether the prosecution has rebutted the presumption of doli incapax.  This rebuttable presumption of doli incapax for a person aged over 10 but not yet 14 is alive in Hong Kong. It has been abolished in England by statute.  MFI-3 is the relevant and succinct submission from defence counsel and relied on in final submissions. This presumption can only be rebutted by positive and unequivocal evidence that shows the 5th defendant knew his acts were seriously wrong.

57.  Mr Yip, for the 5th defendant, quotes from the authority C v DPP [1995] 2 All ER 43, this case being when the presumption still existed in England, where Lord Lowry said:

"The evidence to prove the defendant's guilty knowledge must not be mere proof of the doing of the act charged, however horrifying and obviously wrong that act may be."

Mr Yip further quotes from the same House of Lords case that:

"The guilty knowledge must be proved by express evidence and cannot in any case be presumed from the mere commission of the act."

58.  He also took me to the authority of HKSAR v YHN CACC 251/2014, where the Court of Appeal said:

"The surrounding circumstances of an offence, the behaviour and demeanour of the accused before and after the offence, are able to be considered relevant to determining whether the accused is capable of committing the crime and has guilty knowledge."

59.  Mr Yip fairly accepts that the closer the child is to the age of 14, the easier it is for the prosecution to adduce evidence to rebut the presumption.  Lesser evidence is required.

60.  The House of Lords, in C v DPP, also held that:

"The more obviously wrong the act or offence is, then the easier it will be for the prosecution to adduce evidence to rebut the presumption."

61.  The presumption is only rebutted if the evidence adduced proves it beyond reasonable doubt.  That is the standard required.

62.  I have considered the fact that the 5th defendant was only three weeks from his 14th birthday at the material time. This presumption almost did not apply to him.  I accept that the prosecution cannot rebut this presumption by only proving he was a party to the attempted robberies.

63.  However, I accepted as credible the evidence of the 5th defendant's participation in the preparation of the plan to commit robberies and his reaction during and after the failed attempts.  I accept the evidence was that the 5th defendant was part of the group who decided to rob for valuables.  He agreed to arm himself with an iron pipe, and paid $10 for it on 23 March.  He agreed to be a lookout, or come in from behind to snatch after others had hit the chosen victims.  He was part of the group that walked around Sheung Shui when they were looking for a target to rob.  He ran when the rest ran when it became clear they were not able to rob their victims.

64.  It beggars belief to suggest that the 5th defendant did not appreciate that what they did was seriously wrong based on those facts I believe proved.  These facts relate to the 5th defendant's behaviour and actions before and after the offences. Collectively, I am sure they rebut this presumption raised.

65.  I find the 5th defendant capable of criminal intention, malice and committing a crime.  He knew what the plan was and he also knew what they attempted to do was seriously wrong.  Of that, I am sure.

66.  Under those circumstances, having rebutted this presumption and proved beyond reasonable doubt the 5th defendant was a willing and knowing participant of a joint enterprise to attempt to rob two victims on 23 and 24 March respectively, I, despite his previous clear record, find both charges proved against the 5th defendant.