HKSAR v. HUSSAIN NAVEED AND OTHERS

DCCC 173/2017

[2018] HKDC 1336

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 173 OF 2017

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REASONS FOR VERDICT OF D1 & D2

1.  D1 and D2 plead not guilty to one joint charge of robbery, contrary to section 10 of the Theft Ordinance (charge 1)[1].

2.  The particulars of the charge read as follows:

“Hussain Naveed, Usman Muhammad and Mustafa Ghulam, on the 12th day of July, 2016, at Qiyu Telecommunication Technology Co., Limited, Room 1903, 19th Floor, Treasure Centre, No. 42 Hung To Road, Kwun Tong, Kowloon, in Hong Kong, together with other persons unknown, robbed Gao Feng of 229 iPhones, 94 iPads, one MacBook and 106 smartphones.”

3.  Mustafa Ghulam (D3) pleaded guilty to the charge on 22 January 2018 and is awaiting sentence[2]. Asim Nadeem (D4) who is charged with handling stolen goods has absconded.

Introduction

4.  In July 2016 Liu Yang and Gao Feng were directors of Qiyu Telecommunication Technology Co., Limited which operated business from Room 1903, 19th Floor, Treasure Centre, No. 42 Hung To Road, Kwun Tong, Kowloon (“the office”).  The main business of the company was buying new mobile telephones from Japan and selling them to wholesale customers in Hong Kong.

Prosecution case

5.  In summary in the early afternoon of 12 July 2016 Mr Gao was in the office when he opened the main door and let in two Indian/Pakistani males.  One of the males spoke to Mr Gao while the other male looked around the office.  A short while later the male walking round the office let in four other Indian/Pakistani males whereas the male who was speaking with Mr Gao left. 

6.  One of the five males pulled Mr Gao to the sofa and picked up a paper cutter from a coffee table and threatened Mr Gao by holding the cutter close to his neck.  This male then took Mr Gao’s mobile phone out of his trouser pocket.  The male gave the cutter to another male who continued to point the cutter at Mr Gao’s neck and then ordered Mr Gao to stand and go to the toilet. 

7.  When Mr Gao came out of the toilet the five men had left taking with them stock comprising of 229 iPhones, 94 iPads, one MacBook and 105 smartphones, valued at $1,807,394 together with Mr Gao’s mobile phone.  The majority of the stolen property was recovered by the police two days later.

8.  The prosecution case is that D1 was the second person who held the paper cutter to the neck of Mr Gao.  The prosecution rely on the identification of D1 by Mr Gao in an identification parade; fingerprints of D1 found on a router in the office and on adhesive tape on a carton box which contained some of the stolen goods recovered by the police; CCTV footage showing four of the robbers, one of who the prosecution say is D1, enter the freight lift of the Treasure Centre, go to the 19th floor and leave by the freight lift together with seven cartons containing the stolen goods; and that on arrest D1 gave the police a false alibi.

9.  The prosecution case is that D2 was one of the two males who first entered the office and the one who spoke to Mr Gao and who left when the four other males entered.  The prosecution say that D2 was part of a joint enterprise, whose role was to gain entry with the other male to check to see if there was any stock and to facilitate the smooth entry into the premises of the other four robbers[3].

10.  The prosecution rely on CCTV footage showing D2 and the other male entering the Treasure Centre, going to the 19th floor and D2 leaving the Treasure Centre; a fingerprint of D2 found on adhesive tape on a carton box containing some of the stolen goods recovered by the police; and that on arrest D2, who was arrested together with D1 and D3, gave the police a false alibi.

Defence case

11.  In summary the case of D1 is that the night before D3 asked him to do some work the next day; he went to the office of Qiyu with D3 and two other males, who he did not know, to collect goods; he did not hold a cutter to the neck of Mr Gao and did not see Mr Gao threatened by anyone; and did not know the goods were obtained by robbery.  

12.  In summary the case of D2 is that he was one of the first two males who entered the office of Qiyu; he had previous dealings with Mr Liu who had given him a quotation the day before; he went to the office of Qiyu on 12 July 2016 to make a genuine enquiry about iPhones; he did not know the other male who entered at the same time and did not recognise the four males who entered the office when he left and that his fingerprint was found on the adhesive tape because on 13 July 2016 he had been invited by D3 to look at the phones to see if any of his customers would like to buy the phones. 

Evidence

13.  The prosecution called two witnesses on the list of witnesses attached to the prosecution opening: Mr Liu Yang (PW1) and Mr Gao Feng (PW2). 

14.  The remainder of the evidence was admitted pursuant to section 65C of the Criminal Procedure Ordinance[4], including a table of the stock removed from the office[5]; Mr Gao attended an identification parade where he identified D1[6]; the recovery of stolen property[7]; fingerprint evidence[8]; the arrest of D1 and D2[9]; photographs[10], a sketch of the office of Qiyu[11] and a floor plan of the 19th floor of the Treasure Centre[12].

15.  Also admitted in evidence is CCTV footage (exhibit P87) and still photographs from the footage (exhibit P74)[13]. The CCTV footage was transferred to two discs[14]. Disc 1 shows footage from seven cameras and disc 2 shows footage from three cameras. 

16.  At the end of the prosecution case the CCTV footage, from which the still photographs were taken, was played in court[15]. The pupil of Mr Raffell prepared a very helpful aide memoire setting out the times of each footage; what times were played in court and which footage each still photograph was taken from[16].

17.  D1 and D2 both elected to give evidence.  No witnesses were called on their behalf.    

18.  Admitted in evidence is that D1 and D2 have no criminal convictions in Hong Kong[17].  I direct myself as to good character of D1 and D2 in accordance with the decision in HKSAR v Tang Siu Man[18].

19.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of the defendants before I can convict, the case of each defendant to be considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.

20.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

Prosecution evidence

Robbery

21.  Save for who pointed the cutter at Mr Gao, the evidence of Mr Gao that a robbery took place was not challenged.  I will therefore first briefly summarise Mr Gao’s evidence of what happened on 12 July 2016.

22.  At about 10:30 a.m. when Mr Gao was in the office UPS delivered about 273 phones and iPads which were contained in four large carton boxes.  Mr Gao opened the boxes and took out the phones and iPads to count.  After checking against a list Mr Gao placed the phones and iPads on the floor next to about 190 other phones which were also placed on the floor. 

23.  At about 1:10 p.m. the doorbell rang and Mr Gao let in two Indian/Pakistani males (who I will refer to as “M1 and M2”).   Mr Gao did not know either M1 or M2.  In cross-examination Mr Gao said he was not expecting any customers that day[19].

24.  M1 asked Mr Gao if he had any stock.  Mr Gao replied “Yes”.  M1 also asked if the stock was old or new and whether there was a lock on the mobile phones.  Mr Gao replied that 90% of the phones had locks. 

25.  M2 looked around the office and at the same time was making phone calls. 

26.  When someone pressed the doorbell M2opened the door and four Indian/Pakistani males came in (who I will refer to as “M3, M4, M5 & M6”). At this time M1 left the office.  In cross-examination Mr Gao said this was about twenty minutes after M1 and M2 had entered the office[20].

27.  When Mr Gao went forward to shake hands with M3, M3 pulled Mr Gao to the sofa and picked up a knife from the table.  Photographs 8, 9, 10, 20, 21 & 22 (exhibit P73) show the sofa and table.  In cross-examination Mr Gao disagreed that he shook hands with all four men and said that M3 shook his hand on his own initiative[21].

28.  When Mr Parry showed Mr Gao the cutter, exhibit P16, which had been seized when D4 was arrested and some of the stolen property recovered[22], Mr Gao said that the knife M3 picked up looked like a cutter. 

29.  M3 pointed the knife (cutter) at Mr Gao’s neck and asked Mr Gao to sit down and not to move.  M3 then pointed the knife (cutter) at Mr Gao’s chest and from Mr Gao’s trouser pocket took out Mr Gao’s mobile phone.  M3 then handed the knife (cutter) to M4 who continued to point the knife (cutter) at Mr Gao.  The males then began to take the phones and iPads which they put into carton boxes. 

30.  M4, while holding the knife (cutter) at Mr Gao’s neck, forced Mr Gao to go to the toilet.  In cross-examination Mr Gao said that before he was taken to the toilet M4 handed the knife (cutter) back to M3[23].

31.  M4 stayed all along at the doorway.  While in the toilet Mr Gao could hear some noise of removing mobile phones.  After about ten minutes when Mr Gao could no longer hear any noise he came out of the toilet and saw that all the stock was gone. On being shown photographs 11 and 14 (exhibit P73) Mr Gao said that all the stock had not been taken but could not recall how many mobile phones were left.

32.  Photographs 10, 11, 14, 15 & 21 (exhibit P73) show the position where the phones were placed on the floor.  Mr Gao also marked this position with a red square on a copy of the sketch, exhibit P64[24].

CCTV footage

33.  The CCTV footage (exhibit P87) is consistent with Mr Gao’s evidence that in the afternoon of 12 July 2016 two Indian/Pakistani males entered the office and later four more Indian/Pakistani males also entered the office at which time one of the first two males left the office. 

34.  The times on the CCTV footage are however different to the times given by Mr Gao. The CCTV footage shows two men entering the office between  14:06:40 and 14:07:10 followed by four men between 14:09:20 and 14:09:53 at which time one of the first two males is seen leaving the office[25].

35.  In cross-examination Mr Gao said that apart from the UPS delivery no one else went to the office that day[26]. I am satisfied that Mr Gao has mistaken the time the robbery occurred.  This is not surprising considering the robbery was over two years ago.  

36.  Notwithstanding this mistake, I accept Mr Gao’s evidence.  I am satisfied so I am sure that on this evidence Mr Gao was robbed of the phones and iPads which were on the floor of the office together with his own phone which was taken out of his trouser pocket. 

Stolen property

37.  Admitted in evidence is that a total of 429 phones and iPads, valued at $1,807,394 were removed from the office between 14:00 and 14:30 hours on 12 July 2016[27].  Mr Liu testified that he did not arrange for any customers to remove any phones from the office on 12 July 2016 and that he did not sell or give permission to anyone to remove the 429 phones and iPads from the office.

38.  I am satisfied so I am sure on this evidence that the 429 phones and iPads together with the personal phone of Mr Gao were stolen in the robbery. 

Recovery of the stolen goods

39.  Admitted in evidence is that on 14 July 2016 DPC 58855 entered Room 3, 4/F, 137 Un Chau Street, Sham Shui Po where he seized one carton (exhibit P11) which had been used to contain 100 Samsung phones and three cartons (exhibit P13) which had been used to contain 94 Apple iPads, which phones and iPads had been removed from the office on 12 July 2016 between 14:00 and 14:30 hours[28]. 

40.  Also admitted in evidence is that in the early morning of 14 July 2016 a carton (exhibit P9) containing 126 iPhones and a carton (exhibit P7) containing 100 iPhones were seized from taxi JU 7212, which phones had been removed from the office on 12 July 2016 between 14:00 and 14:30 hours [29].

Arrest

41.  Admitted in evidence is D1 and D2 were arrested at about 12:30 p.m. on 14 July 2016 inside Room 412, Yue Tin House, Pak Tin Estate, Sham Shui Po[30]. 

Video recorded interviews

42.  Admitted in evidence is that in a video recorded interview conducted on 15 July 2016 between 17:21 and 18:08 hours D1 told the police that at the time of the robbery he was with friends in Wan Chai and denied involvement in the robbery[31]. 

43.  Admitted in evidence is that under caution D2 said he did not know anything and in a subsequent video recorded interview conducted on 15 July 2016 between 22:02 and 23:09 hours D2 told the police that at about 14:00 hours on 12 July 2016  he was in Kwun Tong ISS Office[32].

Records of ISS

44.  Admitted in evidence is that the records of ISS show that D2 attended for an interview at 11:35 hours on 12 July 2016; a travel allowance receipt was issued to D2 at 11:36 hours; a food allowance receipt was issued to D2 at 11:37 hours; D2 collected the food allowance at 11:48 hours and that the doors of ISS were locked at 12 noon and were not reopened until 14:00 hours[33]. 

Defence evidence

D1

45.  In summary D1, aged 23, testified that he came to Hong Kong in 2011 to live with his parents and three brothers who were already living in Hong Kong.  Up to the time of his arrest D1 had been working as a delivery worker for a Chinese company called Ming Long for a daily wage of about $500. 

46.  On 11 July 2016 D1 met Mustafa Ghulam (D3) in a games centre.  After midnight when the game centre closed D3 asked D1 if he had any work the next day.  D1 told D3 that he usually went to work in Jordan but tomorrow he had a holiday so he could go to the Pakistan Consulate.  D3 told D1 if he was free the next day to contact him as he had some delivery work to do in Kwun Tong lasting around 1½ hours for which D1 would be paid $700. 

47.  D1 had known D3 for about 6 months and had worked for D3 once before, delivering cement to a construction site. 

48.  The next day D1 went to the Pakistan Consulate.  After finishing at the consulate D1 called D3.  D3 told D1 to go to the seaside at Kwun Tong.  When D1 arrived at the seaside nobody was there.  D1 therefore called D3.  D3 asked D1 to wait.  After waiting for more than one hour D3 arrived together with two other Pakistani/Indian males, who D1 met for the first time.  

49.  D3 was carrying a bag and a wooden trolley.  One of the other males also had a wooden trolley.  D3 took out four caps from the bag and gave everybody a cap.  D1 asked why they needed to wear a cap as it was so hot.  D3 explained that they needed to wear the caps otherwise they would not be allowed to enter the company to collect the delivery.

50.  D1 then followed D3 and the other two males to the Treasure Centre where they took the cargo (freight) lift to the 19th floor as shown in the CCTV still photograph 6 (exhibit P74).  D1 identified himself in photograph 6 as the one wearing a black T-shirt, brown trousers and white sports shoes. D1 said that he had a beard at the time which was just the same as his appearance in court. With the permission of the court a photograph of D1 was taken by the defence (exhibit D1(1))[34].

51.  D1 identified D3 as the last person entering the lift and who was wearing dark blue long sleeved upper garment, light blue trousers and black shoes. 

52.  D1, D3 and the other two males exited the lift on the 19th floor as shown in the CCTV still photograph 7 (exhibit P74).  They then walked to the office of Qiyu atwhich time D2 walked out.  D2 shook hands with D1 and asked what work D1 was doing there.  D1 replied he was working for D3 on daily wages.  D2 then left.

53.  In cross-examination D1 disagreed he did not shake hands with D2 or have any conversation with D2.  D1 agreed that he had been introduced to D2 by Attar Asif about one month before he was arrested[35].

54.  The four of them then entered the office.  D1 could not remember who entered the office first.  D1 saw a Chinese male (Mr Gao) and another Pakistani/Indian male (M2) inside the office.  D1 did not know either of them.  Everybody shook hands with the Chinese male and the Pakistani/Indian male.  When shaking hands D3 or one of the other two males who came with D3 said to the Chinese male “Hello boss”. D1 could not remember who said this. 

55.  After shaking hands D3 asked D1 and the others to assemble and pack carton boxes with mobiles.  With reference to photographs 20 and 21 (exhibit P73) D1 said he was assembling and packing where the carton box is shown in the photographs. 

56.  The Chinese male was sitting on the left side of the sofa and D3 was standing up talking to him in a very low pitch.  At no time did D1 sit on the sofa or approach and say anything to the Chinese male.  D1 did not see anyone threaten the Chinese male or hold any object to threaten him. 

57.  After packing two carton boxes the Chinese male came over and twice put a stack of individual boxes, which he took from the table shown on photographs 18 and 20 (exhibit P73), into the carton boxes.  D1, in English, told the Chinese male not to do that as the packing would not be in a nice way.  D1 then stacked the boxes in a line. The Chinese man then went back and sat on the sofa.  D3 and one of the men who came with him stood beside the Chinese male.

58.  Asked to explain why his fingerprints were found on the router (exhibit P5) D1 said that D3 handed him an object which was also black and was similar to the router and asked him to put it in a carton box.  Later someone, who D1 could not remember, said there was no need to pack the black object which D1 then handed back to that person. 

59.  D1 continued packing the boxes.  When all the carton boxes were packed D1 told D3 that the packing was finished.  The carton boxes were then put on the trolleys.  D3 told D1 and the others to leave.  They then left the office and took the carton boxes to the cargo lift as shown in the CCTV still photographs 11 and 12 (exhibit P74). 

60.  All four entered the lift together with the Pakistani/Indian male (M2), who was in the office when the four arrived, as shown in the CCTV still photograph 13 (exhibit P74).  D1 identified this male as the male wearing a short sleeve light blue shirt and blue trousers who was stood next to him in the lift.  When the lift reached the ground floor the trolleys were driven out of the lift and the parking area as shown in the CCTV still photographs 14 and 15 (exhibit P74). 

61.  D1 then put three carton boxes in a taxi.  When lifting the boxes into the taxi the bottom of one box tore open and the mobile phones dropped on the ground. D1 asked a nearby shop for another box which he used to put some of the mobile phones in.  D1 then put the other phones back in the broken box and stuck the old tape back on the box.  D1 then put four boxes in the taxi. 

62.  D3 gave D1 the address of where to go in Chinese and $100 for the taxi fare.  D1 took the taxi together with one of the two males who came with D3.  D1 did not know the place they went to.

63.  On arrival D1 called D3 who told D1 to wait as he was coming.  D1 and the other male unloaded the goods from the taxi and waited for D3.  When D3 arrived, together with the fourth male who had gone to Treasure Centre with them, he told D1 to take the boxes upstairs.  The four of them took the boxes upstairs which were placed on D3’s bed as there was no other place to put them.  D1 believed the premises were D3’s because he saw a photograph of D3 inside the room. 

64.  In answer to the court D1 said that the male (M2) who was already in the office when they arrived also came by taxi to the premises and that all seven carton boxes removed from the office of Qiyu together with the box obtained from the nearby shop were placed in the room of D3, some on the bed and some on the ground next to the bed[36].

65.  Inside the premises D3 told D1 that payment had not been made by the boss and that when he received payment he would pay D1 the $700.  D1 was never paid the $700.

66.  At the end of his evidence D1 explained that the fingerprint found on the adhesive tape was because he packed the boxes and applied adhesive tape.  Earlier in evidence when referred to photograph 13 (exhibit P74) D1 said that the roll on his left wrist was adhesive tape which he had taken from the office on the 19th floor.  In cross-examination D1 further explained that delivery workers always put the rolls on their wrists and that he had forgotten to take the roll off[37]. 

67.  D1 explained that he told the police that at the time of the robbery he was with friends in Wanchai because he did go to Wanchai but was not sure of the times because he did not notice the time.  In cross-examination D1 said the Pakistan Consulate was in Wanchai and that two friends accompanied him to the Consulate[38]. 

D2

68.  In summary D2, aged 30, testified that he came to Hong Kong at the end of 2012. D2 said that he knew both Mr Liu and Mr Gao and that he had been to the office of Qiyu before 12 July 2016 to buy and sell mobile phones.  D2 explained that he was not a routine visitor but would accompany his customer there whenever one of his customers wanted to buy goods.

69.  D2 said that through Attar Asif he met D1, D3 and D4 about one month prior to 12 July 2016.  D2 said that he met D1 in a games centre in Sham Shui Po and that on a different occasion he met D3 and D4 together, also in Sham Shui Po.  D2 did not know what D1 did for a living and was told by Attar Asif that D3 & D4 were in the business of mobile phones.  D2 never did any business with D3 or D4.  

70.  The last time D2 went to the office prior to 12 July 2016 was on 11 July 2016.  On both occasions D2 was not accompanied by one of his customers.  In answer to the court D2 said that he went to the office of Qiyu on 11 and 12 July on behalf of different customers.

11 July 2016

71.  D2 explained he went to the office on 11 July to check availability of mobile phones because one week earlier he had made an enquiry with Mr Liu on WeChat about Samsung European models.

72.  D2 saw both Mr Liu and Mr Gao in the office.  Mr Liu gave D2 a quotation (exhibit D2(1)) with model numbers and prices of available Samsung phones and iPhones.  D2 did not buy anything that day because he had no confirmation from his client. 

73.  In cross-examination D2 said that he was present when Mr Liu was writing the quotation[39]. In answer to the court D2 said that Mr Liu wrote out the quotation for him.

12 July 2016

74.  D2 said he was the person seen in the CCTV footage wearing a long sleeve pink shirt and carrying with him a messenger bag[40]. D2 said he never changed his clothing before entering the office of Qiyu. 

75.  Mr Gao opened the door.  D2 did not know the other person who entered the office at the same time and did not know this person had followed him into the lift.  D2 went to the office by himself.

76.  D2 said he needed iPhones.  Mr Gao told him that 90% were locked and that D2 could check the phones.  The other male was browsing the mobile phones. 

77.  After about 2-3 minutes someone suddenly pressed the doorbell.  Everyone walked towards the door.  D2 could not remember who opened the door or how many people entered because he was not focusing on those people.  Only after watching the CCTV footage did D2 realise four persons entered.

78.  D2 did not recognise any of the four males because they were wearing caps.  D2 having finished his conversation with Mr Gao left the office as soon as the males entered.  D2 did not shake hands or talk to any of them.  In cross-examination D2 disagreed that he saw D1 when leaving the office and spoke to D1[41].

79.  After leaving the office D2 went to search mobile phones for his customers in a building opposite to the Treasure Centre after which he went home by minibus.

Arrest

80.  D2 explained that he was arrested in the premises where he had been living, together with Attar Asif and his father, for the past three months.  D2 explained that D1 and D3 were also present when he was arrested because the night before Attar Asif had invited them to attend the marriage celebration of his friends, who were also arrested.  D1 and D3 and the two friends were still there the next day because the party had continued until late in the night. 

81.  In cross-examination D2 said that when he was arrested the police brought Attar Asif inside and questioned him about how many people lived in the premises[42].  In answer to the court D2 explained that Attar Asif had left the premises at 4 a.m. and that the police arrested him outside and brought him back to the premises. 

Alibi

82.  D2 explained that when he told the police he went to the ISS office he was very scared and nervous as this was the first time he had been arrested and therefore made a mistake as to the time. 

Fingerprint

83.  D2 explained that his fingerprint was found on the adhesive tape of one of the carton boxes found in taxi JU 7212 because he was invited to look at the mobile phones[43]. On the morning of 13 July Attar Asif received a phone call from D4 asking whether the person who lived with him and does mobile phone business (D2) had any customers who wanted to buy mobile phones saying he could come over and check the phones.

84.  Attar Asif together with D4 then took D2 to Sham Shui Po, to a room somewhere on the 4th floor.  D2 thought the address was on Un Chau Street.  When D2 entered the room D3 was there.  D2 saw some mobile phones in carton boxes and asked D4 for permission to look inside the carton boxes.  D2 then took off the adhesive tape and looked inside the boxes.  D2 looked inside a total of five carton boxes. The mobile phones looked brand new because they were sealed just like when buying from a shop.  D2 stayed there for about 5-10 minutes.

85.  In cross-examination D2 said that he only took the adhesive tape off from one end of the carton box and that the tape was still stuck at the other end of the box. D2 said he did not agree with D4 to buy any of the mobile phones he looked at[44]. 

Discussion

86.  I have carefully considered all the evidence and the oral and written submissions of Mr Raffell, Mr Parry and Mr Lo. 

D1

87.  I have no hesitation in rejecting D1’s evidence.  I do not find D1’s evidence credible, for example I do not find credible D1’s evidence that he did not know that the mobile phones were taken in a robbery. 

88.  It beggars belief that in a legitimate transaction the transportation workers would simply be allowed to pick up goods lying on the floor of an office and pack them in carton boxes.  Equally it beggars belief that in a legitimate transaction the goods would be delivered not to the buyer but to the bedroom of one of the delivery workers. 

89.  I do not find credible D1’s evidence that he did not see anyone threaten Mr Gao with a cutter and force him to go to the toilet.  The robbery took place in the open area of a relatively small office.  The phones were placed on the floor of the office close to the sofa where Mr Gao was threatened with the knife (cutter) (see for example photographs 10 and 21, exhibit P73)[45]. 

90.  I do not find credible D1’s explanation for his fingerprint on the router (exhibit P5).  Mr Gao testified that the router was not usually put on the desk as shown in photograph 18 (exhibit P73).  Mr Gao said that the router was usually kept next to the glass behind the phone shown in photograph 19. 

91.  Admitted in evidence is a sketch (exhibit P64)[46]showing the position of the router on the window sill behind the desk, which is the same position Mr Gao said the router was usually kept. 

92.  Photograph 18 shows a plastic cover on top of the router.  This is part of the router and not placed on the router by the police.  One of the fingerprints is on top of this plastic cover. 

93.  I am satisfied so I am sure the only inference to draw is that the router was moved for the purpose of taking photograph 18. 

94.  I find inherently improbable that in a legitimate transaction for the collection of goods the router, which Mr Gao kept behind his desk, would be touched by any of the transportation workers, let alone be handed to one of the workers as part of the goods being collected[47].

95.  I do not find credible D1’s evidence he told the police that at the time of the robbery he was in Wanchai because he did go to Wanchai with his friends that day but was not sure of the time.  D1 was arrested just less than 48 hours after the robbery and interviewed the next day.  I do not find credible in such a short time the defendant would have mistaken that he was in Wanchai when in fact he was in the office of Qiyu when the robbery took place.

96.  I reject D1’s evidence.  I remind myself that the rejection of D1’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. 

97.  I am satisfied so I am sure Mr Liu and Mr Gao are honest witnesses who tried their best to recall what happened in July 2016, over two years ago.  Unless otherwise stated I accept the evidence of Mr Liu and Mr Gao.   

Identification

98.  The prosecution case is that D1 was the second male (M4) who used the knife (cutter) to threaten Mr Gao and ordered Mr Gao to go to the toilet.  Mr Parry submits that the identification evidence of Mr Gao is unreliable, in particular that Mr Gao neither in evidence or in his witness statements described the facial features of the second male who used the knife (cutter) to threaten him and was confused over the clothing worn by the males and the roles of the males[48].

99.  Five Indian/Pakistani males being present in the office at the time of the robbery I have considered whether Mr Gao has mistaken D1 as one of the persons who used the cutter to threaten him. 

100.  In his evidence D1 said that he went to the office of Qiyu but did not threaten Mr Gao with a cutter. 

101.  In R v Brian Thornton[49], the Court of Appeal held that even where presence was admitted where there was clearly the possibility of mistaken identification a full Turnbull direction should be given[50].

102.  I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness.  I remind myself that mistakes in recognition of close relatives and friends are sometimes made.    

103.  Mr Gao said that the second male (M4) who pointed the knife (cutter) at him was close to him, face to face; the lights in the office were on; he had a particularly clear view of the male; the male sat with him on the sofa holding the knife (cutter) for five to ten minutes; and the male walked him to the toilet where he stayed for about ten minutes. 

104.  Mr Gao said this male was wearing a blue shirt; green cap; blue jeans and white sports shoes.   

105.  Mr Gao identified D1 at an identification parade held on 18 July 2016, six days after the robbery[51]. Mr Gao said he identified D1 because at the time D1 was pointing a knife (cutter) at him for five to ten minutes. 

106.  On 13 September 2018, over two years after the robbery, Mr Gao identified D1 in court.  When asked by Mr Raffell whether he would be able to recognise the second male (M4) who pointed the cutter at him again if he saw him now, Mr Gao replied “Yes”.  Asked if he saw the male in court Mr Gao said yes and pointed out D1.   

107.  In cross-examination by Mr Parry, on behalf of D1, Mr Gao was referred to his witness statement made on 12 July, the same day as the robbery and to a second witness statement made on 19 July, after the identification parade. 

108.  Mr Gao agreed that in both statements he did not mention that the second male (M4), who pointed the knife (cutter) at him, sat next to him on the sofa.   Mr Gao also agreed that in the second witness statement he said that the second male (M4) pointed the knife (cutter) at him for about three minutes. 

109.  Mr Gao was also asked about the descriptions he gave to the police of the males.  Mr Gao agreed that in his first witness statement apart from describing the first male (M1) as having short curly hair he did not describe the hair or facial features of the other five males, including whether or not they had beards. Mr Gao agreed that to a great extent he described to the police the clothing of the males.

110.  Mr Gao also agreed that when giving his description of M4 in court he again did not mention any facial features.  Asked by Mr Parry if he could now remember whether M4 was wearing a beard, Mr Gao replied that at the time he was wearing a beard but it was not very long.  Mr Gao said there was no reason why he did not tell this to the police when giving his statement on 12 July. 

111.  Mr Gao disagreed when Mr Parry put that at the time D1 did not have a beard[52].  I note in his evidence D1 described that he did have a beard, just the same as in court[53].

112.  The CCTV footage shows four males entering the office between 14:09:20 and 14:09:53 and starting to leave at 14:18:40[54]. The robbery therefore lasted about ten minutes.  Mr Gao having been taken to the toilet during the robbery would therefore have had less than five to ten minutes to observe the second male who held the knife (cutter).  Further, as noted earlier Mr Gao told the police the second male (M4) pointed the knife (cutter) at him for about three minutes.

113.  Notwithstanding Mr Gao had less time to observe the second male (M4) who pointed the knife (cutter) at him than he estimated in court; has at no time described the facial features of this male and never told the police this male sat on the sofa with him, I am satisfied I can nevertheless safely rely on Mr Gao’s identification of D1 as the second male (M4) who held the knife (cutter) to threaten him. 

114.  Whilst no doubt this would have been a frightening experience for Mr Gao, I accept he was able to clearly see who held the knife (cutter), which identification was made in good lighting and was not a fleeting glance, Mr Gao being able to see the male face to face.       

115.  In reaching this finding I have carefully considered whether Mr Gao may have made a mistake as to the clothing this male was wearing.   

116.  In evidence D1 said he was the person in still photograph 6 (exhibit P74) wearing a black T-shirt, brown trousers and white sports shoes[55].  In cross-examination by Mr Parry, on behalf of D1, Mr Gao disagreed that D1 was wearing these clothes. 

117.  On 12 September, the first day of trial, before Mr Liu and Mr Gao gave evidence, admission was made that the CCTV footage showed images of four persons entering the freight lift and exiting the lift on the 19th floor and later five persons in the freight lift carrying seven cartons bound with adhesive tape.  No admission was made who these persons were. 

118.  On 17 September, after Mr Liu and Mr Gao had given evidence, the admitted facts were revised.  The revised admission was that the CCTV footage showed images of D1 and three males entering the freight lift and exiting the lift on the 19th floor and later D1 and four males in the freight lift carrying seven cartons bound with adhesive tape[56]. No admission was made which of the males was D1, only that the CCTV footage showed images of D1 and the males.

119.  From the CCTV footage it is not possible to see the faces of the males either on the corridor or in the lift sufficient to identify which one is D1.

120.  Although Mr Gao was not shown photograph 6 or asked to identify who was M4 from any photograph, the description of M4 given by Mr Gao, namely a blue shirt; green cap; blue jeans and white sports shoes, is consistent with the person standing in front of the male wearing black t-shirt and brown trousers.  

121.  Mr Gao’s description of the first male (M1), admitted to be D2[57], is however inconsistent with the appearance of D2 as seen on the CCTV footage and still photographs. 

122.  Mr Gao described the first male (M1) as wearing a white jacket like a national costume, black leather shoes, carrying a black messenger bag; black curly hair, a bit plump, 1.7-1.8 meters; and aged about 35.  Mr Gao could not see whether the male was wearing trousers because the male was wearing something like a robe. 

123.  In cross-examination by Mr Parry, on behalf of D1, Mr Gao agreed that his description of the first male (M1) did not fit either of the first two males seen in entering the office as depicted in the photographs (exhibit P74).  In cross-examination by Mr Lo, on behalf of D2, Mr Gao said that he did not recognise M1 in any of photographs 1-10 (exhibit P74) because he remembered M1 was wearing a long white robe.  Mr Gao also agreed with Mr Parry that the description he gave to the police of the first male (M1) did not fit the description he gave in court[58].

124.  Nowhere on the CCTV footage can D2 be seen wearing a white jacket like a national costume or a white robe.  In cross-examination by Mr Lo, Mr Gao said that as far as he knew D2 did not change clothes inside the office and said that maybe he changed his clothes outside.  In re-examination Mr Gao said that he remembered clearly the first male was wearing a long white robe and said that it was possible that he changed in an area not covered by the CCTV footage.

125.  In cross-examination by Mr Lo, D2 was asked to stand up to see if Mr Gao could recognise him.  Mr Gao replied that he could not recognise D2. When asked by Mr Lo if he remembered whether he saw D2 before 12 July 2016, Mr Gao replied that he did not meet him before and that as far as he remembered he had never seen his face.   

126.  Mr Parry submits that the photographs (exhibit P74) showing that D2 was wearing a very distinguishable red top and that Mr Gao could not recognise D2 in court, serious doubt must be cast on the reliability of any of Mr Gao’s identification evidence[59].

127.  Whilst it would be surprising that Mr Gao has mistaken the style of clothing as opposed to the colour of the clothing, having carefully viewed the CCTV footage it would appear most unlikely that D2 changed his clothing both before entering and after leaving the office. 

128.  The CCTV footage shows the four males (M3-M6) entering at 14:09:48 and D2 leaving at 14:09:52[60]. Although the CCTV footage does not show the door to the office of Qiyu, Mr Gao saying the first male left when the four males entered would leave very little time to change clothes.   

129.  Taking this into account together with Mr Gao’s agreement that the description he gave to the police of the first male (M1) did not fit the description he gave in court, Mr Gao has almost certainly made a mistake as to the clothing of D2 (M1) when giving evidence over two years later.   

130.  Having made a mistake about D2’s clothing there is a possibility therefore that Mr Gao may have mistaken the clothing of the second male who used the knife (cutter). Notwithstanding Mr Gao may have made a mistake as to the clothing, this does not cause me to doubt his identification of D1 as the second person who pointed the cutter at his neck, which identification was made in good lighting and was not a fleeting glance, Mr Gao being able to see the male face to face. 

131.  I am satisfied so I am sure that the prosecution have proved beyond reasonable doubt that D1 participated in the robbery. 

132.  In response to the prosecution submission that if the court has doubts that D1 was the second man who held the knife (cutter) he is nevertheless still guilty because he was present[61], Mr Parry submitted that the prosecution cannot have their cake and eat it by saying on the one hand he held the (knife) cutter but if he did not he is still guilty[62].

133.  I am satisfied so I am sure that even if Mr Gao has mistaken who held the knife (cutter), the prosecution have proved that D1 was a party to the robbery.  D1 was present throughout the robbery.  The robbery took place in the open area of a relatively small office where Mr Gao was threatened and taken to the toilet. The robbers, including D1, picked up phones lying on the floor and packed them in carton boxes, acts wholly inconsistent with a legitimate collection of goods.  I am satisfied so I am sure the only inference to draw is that D1 was a party to the robbery. 

134.  In addition, D1 lied in the video interview when he told the police that he was in Wanchai at the time of the robbery.  For the reasons already given I do not find credible in such a short time D1 would have mistaken that he was in Wanchai when in fact he was in the office of Qiyu when the robbery took place.[63]  I am satisfied so I am sure that D1 did not lie for an innocent reason when he told the police in the video interview that he was in Wanchai at the time of the robbery.  I am satisfied so I am sure that the lie was a deliberate lie, which lie supports the prosecution case.

135.  In reaching my verdict I have carefully considered everything said on behalf of D1 by Mr Parry, both individually and collectively, including that the prosecution never challenged the assertion by D1 as to who he was in the photographs which evidence was different to Mr Gao[64] and the difficulties of identifying persons of a different race[65].

136.  Nothing said by Mr Parry causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  D1 is convicted as charged.

D2

137.  I have no hesitation in rejecting D2’s evidence.  I do not find D2’s evidence credible, for example I do not find credible D2’s evidence that he had been to the office of Qiyu before the 12 July to buy and sell mobile phones; that he went to the office on 11 July because he had made an enquiry via WeChat and that he went on 12 July for a different customer to enquire about iPhones.

Exhibit D2 (1)

138.  I do not find credible D2’s evidence that on 11 July 2016 he went to the office of Qiyu to check the availability of Samsung European models because he had made an enquiry with Mr Liu via WeChat and that Mr Liu gave him a quotation, exhibit D2(1). 

139.  Exhibit D2(1) is a handwritten note on the reverse of a commercial invoice with the date of exportation being 2015/9.29. 

140.  In cross-examination by Mr Lo, on behalf of D2, Mr Liu said that he used WeChat and that on 11 July 2016 (the day before the robbery) he received an enquiry on WeChat about Samsung European models but could not remember if he said they would be available in a week. 

141.  Mr Lo showed Mr Liu the handwritten note.  Mr Liu said that the handwriting was his; that he had never given the handwritten note to anyone, including D2; he would give customers company invoices; and that many of these notes were stolen in the robbery.  Mr Liu said he did not know D2, could not recall having any business with D2 and explained that face to face customers were rare as they usually have agreed everything with their customer on WeChat before the customer went to the office. 

142.  In re-examination Mr Liu specifically stated that exhibit D2(1) was stolen in the robbery; that the commercial invoice was from Japan to his company; and that he never had a face to face meeting with D2 or reached an agreement to sell him any phones.   

143.  In answer to the court Mr Liu explained that the handwritten note related to the model numbers of mobile phones and the sale price; the handwritten note was unrelated to the commercial invoice; that after six months he would cut the commercial invoice and then write the notes on the reverse side; the notes would then be placed on his desk and that he was unable to say when he last saw the note because he had many of these notes on his desk. 

144.  In cross-examination by Mr Lo on behalf of D2, Mr Gao was also shown the handwritten note.  Mr Gao said that he could not recognise the handwritten note because it was not written by him.  Mr Gao disagreed the note was given by Mr Liu to someone on 11 July explaining that the note was an internal document of the company.   Mr Gao agreed that the note mentioned models and how much the models were but was not sure whether the prices were the selling price.  Mr Gao disagreed the note was a quotation to give to a client. 

145.  In §2(vi) of the closing submission for D2 Mr Lo states that Mr Gao confirmed that nothing except mobile phones were taken away by the robbers.  During oral submissions the court pointed out that this was incorrect.  During cross-examination Mr Lo asked Mr Gao if he checked whether anything apart from stock was taken away.  Mr Gao replied that he did not check.  

146.  I am satisfied D2’s evidence was entirely contrived in an attempt to explain why he had exhibit D2(1).  I accept the evidence of Mr Liu that he did not give exhibit D2(1) to anyone; that the note was stolen in the robbery and that he never had a face to face meeting with D2 or agreed to sell D2 any phones.  I accept the evidence of Mr Gao that the note was not given to someone by Mr Liu on 11 July and that the note was an internal document and not a quotation. 

Fingerprint

147.  I do not find credible D2’s evidence that on 12 July he went to the office of Qiyu by himself; he did not know the male (M2) who entered the office at the same time; he did not recognise that D1 and D3 were among the four males who entered when he left the office and that his fingerprint was on the adhesive tape of a carton box containing mobile phones stolen in the robbery because he had been invited to look at the phones to see if his customer wanted to buy any. 

148.  The CCTV footage shows that a male (M2) followed D2 into the Treasure Centre; entered the lift at the same time as D2; followed D2 along the corridor and entered the office of Qiyu at the same time as D2[66].

149.  Admitted in evidence is that two days after the robbery D1 and D3, who took part in the robbery, were arrested together with D2[67]and that D2’s fingerprint was found on the sticky side of adhesive tape packing one of the carton boxes containing phones stolen in the robbery, which had been seized in the boot of taxi JU 7212 in the early morning of the day D2 was arrested[68].

150.  Mr Lo submits that from the relevant CCTV footage it is clear that D2 was not with M2 (R1 in Mr Lo’s submission)[69].

151.  I am satisfied that it is no coincidence that D2 entered at the same time as one of the robbers (M2) and that his fingerprint was found on the adhesive tape packing one of the carton boxes containing phones stolen in the robbery. 

152.  I find inherently improbable that if D2 had nothing to do with the robbery and was not together with M2, M2 would let in the other robbers while D2 was still present in the office.  M2 would not know when D2 would leave and would therefore not risk D2 witnessing what happened and alert the police or security guards of the Treasure Centre. 

153.  I am satisfied D2’s evidence is entirely contrived in an attempt to try explain why he entered the office immediately before the robbery together with one of the robbers; why he did not recognise that D1 and D3 were among the four males who entered when he left the office and why his fingerprint was found on the adhesive tape packing one of the carton boxes containing phones stolen in the robbery. 

Alibi

154.  I do not find credible D2’s evidence that he made a mistake as to the time when he told the police he went to the ISS office. 

155.  Admitted in evidence is that D2 did go to the ISS office on the morning of 12 July 2016 at 11:35 hours and that the doors of the ISS office were closed between 12 noon and 14:00 hours[70]. According to the CCTV footage D2 went to the Treasure Centre at about 14:07[71] and that the robbery took place between 14:09 and 14:20[72].

156.  Accepting anyone being arrested for the first time would be scared and nervous I do not accept D2 made a mistake as to the time.  D2 was arrested less than 48 hours after the robbery and interviewed the next day.  I do not find credible in such a short time the defendant would have mistaken being at ISS office when he was at the office of Qiyu. 

157.  I reject D2’s evidence.  I remind myself that the rejection of D2’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt. 

158.  Mr Lo submits that Mr Gao not being the person dealing with customers, let alone old or new customers, would not let in two total strangers[73].  I have no hesitation in rejecting this submission.  This submission overlooks the evidence of both Mr Liu and Mr Gao.  In cross-examination Mr Gao said that the company had both old and walk-in customers[74]. In evidence Mr Liu said that most customers were repeat customers but he would not reject new customers.  

159.  I am satisfied so I am sure Mr Liu and Mr Gao are honest witnesses who tried their best to recall what happened in July 2016, over two years ago.  Unless otherwise stated I accept the evidence of Mr Liu and Mr Gao.  

160.  Mr Lo submits that D2 was not part of the robbery, in particular that from the CCTV footage it is clear that D2 was not with M2 (R1 in Mr Lo’s submission); D2 did not check what could be stolen; D2 did not let the four robbers in the office and that there is no evidence that D2 remained in the vicinity or communicated with the robbers after he left the office[75].

161.  I have no hesitation in rejecting this submission.  Taking into account that:

(i) D2 entered the office of Qiyu at the same time as one of the robbers (M2);

(ii) the inherent improbability that if D2 had nothing to do with the robbery and was not together with M2, M2 would let in the other robbers while D2 was still present in the office;

(iii) D2 was arrested together with two of the robbers, D1 and D3, two days after the robbery, showing his close connection with the robbers; and

(iv) D2’s fingerprint was found on the adhesive tape packing one of the carton boxes containing phones stolen in the robbery, showing his close connection with the stolen goods.

I am satisfied so I am sure the only inference to draw is that D2 went together with the male (M2), the role of D2 being to distract Mr Gao while the male (M2) looked to see what phones could be taken and to let the other four robbers enter the office[76].

162.  I am satisfied so I am sure that the prosecution have proved beyond reasonable doubt that D2 was party to the robbery. 

163.  In addition, D2 lied in the video interview when he told the police that at the time of the robbery he was in the ISS office.  For the reasons already given I do not find credible in such a short time D2 would have mistaken that he was in the ISS office when in fact he was in the office of Qiyu[77].  I am satisfied so I am sure that D2 did not lie for an innocent reason when he told the police in the video interview that he was in the ISS office at the time of the robbery.  I am satisfied so I am sure that the lie was a deliberate lie, which lie supports the prosecution case.

164.  In reaching my verdict I have carefully considered everything said on behalf of D2 by Mr Lo, both individually and collectively; including that Mr Liu and Mr Gao said they had walk-in customers[78]; Mr Liu accepted that customers communicated by WeChat[79]; there is no evidence that after D2 left the office of Qiyu he remained in the vicinity or had any communication with the robbers[80] and that after the conclusion of his evidence Mr Liu said that he hoped the criminals would be heavily punished[81].  Nothing said by Mr Lo causes me to doubt the findings I have made.

165.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge as against each defendant beyond reasonable doubt, the case against each defendant being considered separately.  D2 is convicted as charged.