HKSAR v. CHAN WAI YIP AND OTHERS

DCCC 876/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 876 OF 2012

____________

____________

REASONS FOR VERDICT

1.  Charge

The defendants (D1-D3) pleaded not guilty to the offence of Robbery contrary to section 10 of the Theft Ordinance.

2.  Overview

A woman (PW1) was robbed by three males of her handbag and its contents on Westland Road, Quarry Bay at about 6.10 am on 27 August 2012. About 10 minutes after PW1 was robbed, police officers found the three defendants together with her handbag inside a cubicle of the Quarry Bay Park toilet which was in close proximity to Westland Road. PW1’s handbag and some of its contents were scattered on the floor of that cubicle. D1 was in possession of two octopus cards and $690 belonging to PW1.

3.  Upon arrest and after cautioning D1 he admitted the robbery.

4.  The defence case

The majority of the prosecution case was not disputed. There was no dispute by the defendants that PW1 was robbed by three males nor that they were all found inside a cubicle with PW1’s handbag and its contents shortly after PW1 was robbed.

5.  The defendants case is however that they did not rob PW1 of her handbag.  The defendants have put the prosecution to strict proof that it was the defendants who robbed PW1. 

6.  D1 although not having formally pleading guilty to theft has admitted to theft.  His case as put in cross-examination was that he had found PW1’s handbag approximately 150 metres away from the public toilet and had taken from the handbag two octopus cards and $690.

7.  D2’s case as put in cross-examination was that PW1 may have only been robbed by one person and not three.

8.  Issues

The principle issue in this case was whether the prosecution had proved beyond all reasonable doubt that it was D1 to D3 that robbed PW1 of her handbag. The other remaining issue was whether D1 had admitted to the robbery.

9.  The above issues turn principally on the evidence of PW1 the victim, D1’s arresting officer PW2 and PW5 an officer present during the time of arrest of D1 and extensive circumstantial evidence.  

10.  A resolution of the issues is to be inferred from the facts of the case. 

11.  Proof

It is for the prosecution to prove that the defendants robbed PW1 of her handbag. No burden at all lies with the defendants.

12.  The trial

The trial was held in the alternative procedure. The prosecution sought to adduce into evidence admissions made by the three defendants. The defendants challenged the admissibility of any admissions made. A voire dire was held in respect of the special issue. I ruled that D1’s admission if made, was made voluntarily and was admissible into evidence. I exercised my judicial discretion on the grounds of unfairness and excluded any admissions if made, by D2 and D3 from evidence.

13.  The witnesses

The prosecution called seven witnesses (PW1- PW7) inclusive for both the general and special issues. However after my ruling on the special issue, the only witnesses evidence which was relevant to the issues was principally PW1 and police officers PW2 to PW5.

14.  None of the defendants elected to give evidence on the general issue in their defence and they called no defence witnesses.

15.  The evidence

The only contentious witnesses on the general issue were the police officers PW2 and PW5. PW2’s evidence was that D1 had confessed to the robbery of PW1. Further that he PW2, had witnessed D1 in the cubicle open the handbag and take out some property and thereafter place the property into his shorts pocket. PW2 and PW5 denied any threats of assault or inducements on D1.

16.  PW1

PW1 is a registered nurse aged 39 years. At about 6 am on 27 August 2012, she left her home to go to work by minibus. She walked along Westlands Road towards Tai Koo Shing. At about 6.10 am when she reached the fast food restaurant chain of KFC someone forcefully grabbed hold of her neck from behind and pulled her to the ground.

17.  When PW1 fell to the ground a male tried to snatch her handbag, however she vigorously pulled it back.  No sooner had she prevented the male from snatching her bag, suddenly three males then grabbed hold of her handbag together and forcefully snatched the bag away from her grasp. 

18.  After the three males grabbed hold of her bag she then saw them flee very speedily in the direction along Westland Road along Ping Hoi Street. 

19.  Whilst they were running away PW1 was able to see the back of the males when they fled.  She was only able to describe the colour and type of their upper garments.  She said one of them wore a dark blue short sleeve T-shirt, the other a white T-shirt and the third a black vest. 

20.  Later that same day the police showed her, her handbag and its contents they had recovered.  She identified the handbag and properties as belonging to her.  The only item that was not recovered was a hospital staff card. 

21.  PW1 stated that about 20-30 seconds had passed from the time that her neck was grabbed to the time her bag was snatched away from her.  She was able to see the backs of the males for about 10 seconds when they were running away. 

22.  The estimated value of her stolen properties was about $10,000.  PW1 had sustained multiple abrasions on her neck, right upper limb and bilateral knees from the robbery. 

23.  PW2 PC 58451

PW2 was a police officer on duty in plain clothes on that day. patrolling inside a police vehicle. He was informed by the console that three males had snatched a ladies handbag in Westlands Road. After receiving some information from pedestrians in the vicinity of Westland Road he proceeded to and ran towards the Quarry Bay toilets.

24.  He was the first officer to go into the male toilets at about 6.15 am.  There were three cubicles.  Two of the cubicle doors were open whilst the middle cubicle door was closed.  He heard the sound of whispering inside the middle cubicle but could not hear what was being said. 

25.  PW2 then looked thorough the gap underneath the cubicle door and the floor. Through the gap he saw more than one pair of legs.  He found that to be unusual so he therefore went to the inner most cubicle adjacent to the middle cubicle to peer over the partition into the middle cubicle. 

26.  When he looked over the partition into the middle cubicle he saw the three defendants squatting and sitting surrounding a ladies pink handbag.  He saw D1 stretch his hand into the handbag and take something out that looked like coins and money and put them into his right shorts pocket.  Upon seeing this PW2 shouted “police come out.”

27.  The three defendants then came out of the cubicle in single file.  PW2 then revealed his identity and produced his warrant card to D1.  He took D1 to the urinal in the toilets for investigation.  The other two defendants D2 and D3 were respectively investigated by two other police officers (PW3 and PW4).

28.  PW2 asked D1 what he was doing there however D1 remained silent.  PW2 then searched D1’s body and from his right front shorts pocket he found $690 and a child and adult octopus card.  PW1 then asked D1 how he had come by those things.  D1 replied “these things were obtained when I earlier snatched them from a woman.”  PW1 immediately declared arrest upon and cautioned D1.  After caution D1 said “Ah Sir regarding the things they were snatched from the woman by us together.”

29.  D1 and the other defendants then left the toilets and were taken to the Chai Wan Police Station at about 6.45 am.  At the police station PW2 made a post record of the statement made by D1 after caution at 7.20 am in his notebook.  After PW2 made the post record he read it and D1 read it then D1 signed it. 

30.  PW2 denied D1’s case as put to him by D1’s counsel Mr Phil Chau in cross-examination.  PW2 denied the following :-

i.that the lights in the toilet were switched off,

ii.that the cubicle door where D1 and the other defendants were in, was kicked and the police used foul language telling them to open the door,

iii.When D1 came out of the cubicle he had given PW2 two octopus cards and $690,

iv.When D1 gave PW2 those items PW2 asked him where did he get those items from and D1 replied that he and his friends had found a pink handbag at the fountain about 150 metres away. However PW2 refused to accept D1’s explanation.

v.In PW2’s presence another officer PW5 then threatened to assault D1 if he did not hurry up and admit to committing the robbery.

vi.D1 replied that he had to think about it before he answered.

vii.At the police station PW2 gave D1 three choices on what to say.

viii.PW2 promised D1 that if he signed the notebook then he could be bailed out and could make a phone call. Therefore D1 signed the notebook.

ix.D1 signed the notebook upon PW2’s promise and PW5’s threats of assault.

31.  PW5 PC34866

At the time of D1’s arrest he was in the toilet. He stated he had never threatened to use violence on D1. He denied the allegations put to him by Mr Chau as above listed in paragraph 30 (i-vi).

32.  Submissions

Counsels for the three defendants made submissions on behalf of their clients. I will not reiterate or repeat all the submissions. The fact that I have not mentioned a submission does not mean I have not considered it.

33.  Mr Chau counsel for D1 conceded in his submissions that upon D1’s case D1 was guilty of theft but not of robbery.  He submitted PW2’s evidence that he had made the initial notebook entry at the toilet was not credible as this was not recorded in PW2’s witness statement and no other officers had seen him write in the notebook.  Mr Chau submitted the court should therefore find there was no admission made by D1 and if the court finds that such an admission was made then no weight should be attached to it.

34.  Mr Chau’s further submissions were adopted by Mr Dick Lee counsel for D2 and Mr William Allan counsel for D3.  Mr Chau accepted that PW1 was robbed of her handbag in the manner she described however there was no evidence of her identifying that it was the three defendants who did this.  PW1’s evidence concerning identification was weak.  She was unable to describe the robbers faces, their height or any distinguishing features. 

35.  Mr Lee and Mr Allan for D2 and D3 submitted that PW1’s identification of the robbers was a fleeting glimpse and it was dangerous to rely on her description of the clothes of the culprits. 

36.  Mr Allan further submitted that PW1 only described the colour of the backs of the upper garments worn by the robbers however it was not known what the colour of the backs of the shirts worn by the defendant’s were.  The photographs of the defendants clothing in P9 photos 11-13 was only taken of the fronts of their upper garments and it is therefore not known what the colour of the backs of the T-shirts were, therefore the backs of the defendants upper garments may not be the same colour as described by PW1. 

37.  Analysis

In considering the evidence I bear in mind that D2 and D3 both have clear records. The defendants are all youths. D1 was aged 17 years, D2 was aged 15 years and D3 was aged 16 on the date of the robbery. I have directed myself regarding the propensity of D2 and D3 of committing a crime. Their good character makes it less likely than otherwise that they would commit a crime.

38.  D1’s admission

In the voire dire D1 elected to give evidence. I rejected his evidence. Most incredulous was D1’s account of PW2 giving him three different choices as to his involvement in the robbery when at the police station before he signed PW2’s notebook. Those options were either he did the snatching alone, or they did the snatching together or he had no part in the snatching. Yet it was D1’s evidence that he chose the option that implicated him and the other two defendants. When the defendant chose the option that implicated him PW2 said that was the appropriate choice.

39.  It is beyond belief that D1 would choose an option that implicated him and not an option that wholly exonerated himself.  It is also incredulous that if it was PW2 and PW5’s intention was to extract an admission from D1 that PW2 would give D1 an option that exonerated D1. 

40.  PW2 and PW5’s evidence was straightforward and reliable.  They were not shaken in cross-examination.  PW2 was the officer that arrested and asked D1 questions.  I did not believe that D1 had handed the properties to PW2.  I was satisfied that the stolen items were found by PW2 from D1’s shorts.  Justifiably PW2 then asked D1 how he had come by those things.  I accept D1 replied that he had earlier snatched them from a woman.  Correctly as soon as D1 uttered those words, PW2 arrested and cautioned D1 where upon D1 made a further admission under caution that those things were snatched from a woman by the three of them.

41.  I was satisfied that the prosecution had proved beyond all reasonable doubt that D1 had made the admissions voluntarily.  I was also satisfied that such admissions were in fact made by D1 inside the toilet and he had signed the post-record made by PW1 voluntarily.

42.  PW’s 3, 4, 6 and 7

The above police officers evidence was challenged predominantly in relation to the admissibility of the admissions made by D2 and D3. I found that PW’s 3, 4, 5, 6 and 7 were honest and reliable witnesses. D2 and D3’s admission though made voluntarily, I found, should be excluded on the grounds of unfairness.

43.  I acknowledge that in some instances police officers need to make enquiries from suspects even though they are below 16 years upon interception without a parent or guardian present.  However, in this case it was not necessary or urgent for PW3 to investigate D2 without the presence of a parent or guardian of D2.  The evidence was that three males had robbed PW1 of her handbag.  The police had arrested three males and found PW1’s handbag.  I did not see there to be any urgent need for PW3 to have further investigate the matter further with D2. 

44.  Further PW3 knew that D2 was aged 15 immediately upon interception.  PW3 knew that he should only question D2 in the presence of a parent or guardian.  He had asked D2 about his parent or guardian.  PW3 erroneously and surprisingly accepted D2’s explanation not to contact his grandmother.  PW3 also said it was too early in the morning to contact D2’s social worker as she would not be at work.  With the above circumstances in mind, he should have waited to interview D2 in the presence of D2’s grandmother or social worker. 

45.  I excluded D3’s admission and post-record as they were inextricably linked together on the evidence of PW4.  PW4 was a new recruit to the police force.  He had only been a police officer for just over one year when he arrested D3.  When he took D3 back to the police station he had permitted D3 to use his own mobile phone to make a phone call.  At the time D3 made the phone call PW4 said he was busy writing out the post record and did not pay attention to what D3 said but that he heard the words “Ah Ma” or mummy when D3 commenced the conversation.  It was D3’s evidence that he had told PW4 that his mother was instructing a lawyer to go to the police station immediately and for PW4 to wait for the lawyer to arrive before he continued any further.  PW4 said he did not hear this. 

46.  D3’s mother arrived at the police station sometime after 8 am.  She spoke to PW6 and told him she was D3’s mother and that she was waiting for a lawyer there.  Very shortly after the post record was finished the lawyer (who was incidentally Mr Allan) arrived at the police station. 

47.  D3 made an immediate complaint to the Duty Officer (PW7) that his statement was taken in the in the absence of legal representation. 

48.  I accept that D3 told PW4 that a lawyer was coming to the police station but PW4 did not hear this as he was concentrating on writing his post record.  PW4 should have heard D3 and should have been paying careful attention to him.  Probably due to PW4’s inexperience as a police officer he mistakenly:-

(i) permitted D3 to make a phone call during the writing of the post record,

(ii) permitted D3 himself dial from his own mobile phone,

(iii) did not make the call on behalf of D3,

(iv) did not pay attention to what D3 was talking about whilst D3 was on the phone,

(v) did not know who D3 was in fact talking to and

(vi) left D3 in possession of his own mobile phone for the duration of the post-record and not paid attention as to what D3 was doing with it.

49.  PW6’s evidence was that D3’s mother (DW4 in the voire dire) told him she was at the police station to see her son D3 and was waiting for a lawyer.  His evidence was that he told her to wait for the lawyer in the report room waiting area.  He did not communicate this to PW4 as he interpreted that the mother was just meeting the lawyers at the police station.  The mother’s arrival and at least her waiting for lawyers should have been communicated to PW4.  Why else would lawyers be coming to the police station if not for legal representation for D3?  

50.  I excluded D3’s admissions from evidence as his legal representatives were not present during the post record at the police station when in all the circumstances the police should have known that they were on the way shortly to see D3. 

51.  PW1’s evidence

PW1 was an honest and reliable witness. She frankly admitted the robbery happened very quickly in about 20 seconds and she at that time she was scared.

52.  PW1 only saw the robbers upper garments and said they were males.  She was unable to give any further details as to their identification.  I accept that 10 seconds is a short time and I have warned myself that PW1 may be an honest but mistaken witness however I was satisfied that there was sufficient time for her to remember the very simple details of the colour and types of the three robbers upper garments and that they were male.

53.  Consideration of the circumstantial evidence

Mr Sajan Sujanani counsel on fiat submitted that on all the circumstantial evidence the court could draw in irresistible inference that the three defendants did rob PW1.

54.  There was no direct identification evidence that the defendants were the robbers.  However on all the evidence before me I drew the irresistible inference on the facts that the defendants were the robbers.  In summary, the defendants were found together in a one person cubicle together with PW1’s stolen handbag, their presence in the cubicle with the handbag was a very short time after the robbery, the location where they were found was very close to the robbery, they were three males and the colour and type of upper garment were identical to that as described by PW1.

55.  The defendants found together in a cubicle with PW1’s stolen handbag

There was no dispute that the defendants were in a cubicle in the toilet with PW1’s stolen handbag. There are many questions to be asked. What are three males doing inside one cubicle together? More so what are three males doing inside a cubicle with a ladies handbag not belonging to them? I accept that these highly suspicious circumstances but are not by themselves irresistible inferences that they robbed PW1, however when considered together with the other evidence and factors the only irresistible inference is that they were the three that robbed PW1.

56.  Defendant’s found in the cubicle with the stolen handbag shortly after the robbery

The defendants were found in the cubicle with the stolen handbag within a very short time of about 10 minutes after the robbery. D1 in the presence of D2 and D3 was taking things out of the stolen handbag and pocketing them. D1 was in recent possession of the stolen property.

57.  Distance from the location of the robbery to Quarry Bay toilets

The defendants were found in the Quarry Bay Park toilets which was a very short distance from Westlands Road, see the map of the Hong Guide Street and Place Names exhibit P12.

58.  Time for defendants to get from location of robbery to Quarry Bay toilets

The defendants fled in the direction of the Quarry Bay Park. The defendants were able to reach the toilets in ample time within the 10 minutes from Westlands Road to the toilets. It would have taken approximately 5 minutes to arrive at the Quarry Bay toilets from KFC if they had run the whole way. PW3’s evidence was that on the morning of 27 August he immediately went to KFC and saw PW1 after she had been robbed. He then ran from KFC to Quarry Bay Park toilets which took him about 4-5 minutes, even with some pauses along the way to ask some questions of passers-by.

59.  The number of robbers

PW1 said there were three male robbers. The defendants are all male and were found together in a group of three.

60.  Colour and description of the upper garments of the robbers

PW1’s description of the colour and type of the upper garments that the robbers wore were identical to the upper garments that the defendants were wearing when they were located and arrested. This can be seen in the exhibit P9, photos 11, 12 and 13.

61.  Most notably D2’s upper garment was a vest which was a more highly distinguishable upper garment than a t-shirt.  PW1 described the robbers as wearing a vest and T-shirts which were what the defendants were wearing.

62.  Moreover D1’s admission that he snatched the handbag was solid evidence that he was one of the robbers.  I accept that D1’s admission incriminating the other two defendants is not and cannot be uses as evidence against them.

63.  Conclusion

The circumstantial evidence when looked at in totality in this case leading to the drawing of an irresistible inference that the defendants were the robbers was overwhelming. I was satisfied that the prosecution had proved beyond a reasonable doubt that the three defendants were the three males that robbed PW1 of her handbag.

64.  In the circumstances I find the defendants guilty of the charge of robbery.  The defendants are convicted of the charge accordingly.