HKSAR v. LAU CHAK LAM, ANDY

DCCC 1201/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1201 OF 2012

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Reasons for Verdict

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Charge

1.  The defendant pleads not guilty to a charge of robbery of a pair of earrings studded with diamonds at a jewelry shop in Mong Kok.    

Defence stance

2.  The defence alleges that the defendant was not present at the shop, let alone committing the robbery.  He does not give evidence or call any defence witnesses. 

Prosecution case

Gold-To-Cash shops

3.  There are 4 prosecution witnesses.  Gold-To-Cash was a company consisting of 3 second-hand jewelry shops, one in Yim Po Fong Street, Mong Kok (“Shop A”), another in Nullah Road, Mong Kok (“Shop B”) and the other one in Tin Hau.  They buy and sell genuine diamonds and gold.  PW1 was the person-in-charge and only person at Shop A.  All 3 shops were owned by PW4, Ho Lai-ping.  PW4’s daughter, PW2 Tong Ka-lai, managed the 3 shops for her.  PW2 was the person-in-charge and only person at Shop B.  PW2 would go to the 2 other shops frequently, though.  Both PW2 and PW4 were familiar with the stock of the 3 shops.

Robbery at Shop A

4.  At 4:03 p.m.[1] on 9 August 2012, a male entered Shop A and browsed at various items.  It was a small shop.  PW1 was behind one of the counters. After some viewing, the male focused on a pair of 4-bladed windmill-shaped earrings studded with diamonds (“I shall refer to this pair of earrings as “the Windmill Earrings”).  The listed price was $39,900.  He requested for a discount.  When PW1 was considering his request, he threw a vast amount of pepper[2] at PW1’s face.  PW1’s eyes were in pain and the male snatched the Windmill Earrings from PW1’s hand.  Upon leaving the shop, the male turned left towards the direction of Prince Edward area.  PW1’s eyes were in pain and he could not give chase.    

Lady boss being told of the robbery

5.  It is not known [3]if it was either because PW1 had phoned up PW4 or PW4 just happened to visit the shop as part of her business routine.  She saw pepper powder on the floor and PW1 washing off the pepper from his eyes. He informed her of the robbery and she in turn phoned up to tell PW2 of it.    Despite the phone call, PW2 did not know that the robbery was of the Windmill Earrings[4]. 

Visit by the defendant at Shop B

6.  At 4:30 p.m. (ie 23 minutes after the robbery at Shop A), the defendant[5] appeared at Shop B with a female.  It was also a small shop.  He asked PW2 to give a quote for the pair of earrings.  He produced from his trouser pocket a mobile phone pouch containing a tissue paper containing a pair of earrings.  He put them on a dark-coloured platter over the counter for PW2 to examine.  Within 1 or 2 seconds, PW2 recognized them[6] as the Windmill Earrings. 

7.  She quickly took a photo of the female with her mobile phone.  The female was outraged.  She immediately picked up the pair of earrings and left with the defendant.  

Identification of the Windmill Earrings by PW1

8.  In Court, PW1 looks at the photo of a pair of earrings[7] and finds them 99% similar to the pair of earrings taken by the robber.  He has no idea from where the photo comes.  The photo is actually generated from the computer record made and kept by PW2 in the course of business. 

Identification of the Windmill Earrings by PW2 and PW4

9.  PW2 could instantly recognize them because each item acquired by the company would be examined by her.  She would check its authenticity, weight, karat and other qualities the same night.  She would cause it to be cleaned up and use her mobile phone to take a photo of it for uploading onto the computer as a business record.  She had regularly seen the Windmill Earrings in display when she toured Shop A in her duty.  She had not seen or heard of any other pair of earrings like them.  From the shape, the pattern, the diamonds and the fact that they came in a set with the Windmill Finger-ring[8], she was 100% sure that they were the Windmill Earrings. 

10.  According to PW4, before and at the time of the robbery, there were no other items like the Windmill Earrings at her shops[9]. 

Identification of the robber by PW1

11.  On the same date, PW1 gave a statement to the police.  He described the robber as a male, aged 30 to 35, about 5’3”, thin, with short hair, in white shirt, dark-coloured trousers and leather shoes.  He has a flimsy impression of the features of the male.  He can tell no special features on the face of the male[10].   

12.  On 5 September 2012, he picked out the defendant as the robber among the 9 people in an identification parade. 

Features of the robber shown in CCTV clip/photos of Shop A

13.  The CCTV clip of Shop A showed that the male had stayed in the shop for 3 minutes 38 seconds.  He was about 5’6” but most of the time he was not standing upright[11].  He looked thin and fit in his tight-fitting long-sleeved shirt.  The shirt was white in colour with 2 flap-covered front pockets at the chest level.  The shirt was not tucked into his trousers.  His trousers were straight-legged and dark in colour.  His shoes were dark in colour.  He wore a light-coloured cap. 

Features of the defendant shown in CCTV clip/photos of Shop B

14.  The defendant[12] and a female entered Shop B.  He was about 5’6”.  He looked thin and fit in his grey-coloured tank top.  His trousers were straight-legged and dark in colour.  His shoes were dark in colour.  He wore sun-glasses[13]. 

Arrest and caution of the defendant

15.  On 28 August 2012, upon arrest and caution by PW3 DSPC 46132 for the robbery, the defendant remained silent.  A search of his flat was conducted with no findings.  The Windmill Earrings were not recovered.  He voluntarily gave answers in his VRI[14].

Contents of VRI

16.  He denies having attended Shop A.  On the issue of whether he knew the female was bringing the pair of earrings for selling, he had 3 versions:

(1) When he went out from home at Tai Wai, Shatin, with the female, who was his girl-friend and cohabitant, he knew she had brought the pair of earrings for them to sell in Prince Edward area [#184 – 205];

(2) He did not know she had brought along the pair of earrings as they went out [#272 – 275];

(3) He knew it would be possible that she would be bringing the pair of earrings for pawning as they went out [#306 – 313].

17.  On the issue of who asked PW2 for a quote, he had 2 versions:

(1) It was his girlfriend who asked PW2 for a quote [#346 – 351];

(2) Upon being shown a photo[15] allegedly from the CCTV of Shop B, he could not remember whether it was he and/or she who asked PW2 for a quote [#395 – 404].

Defence case

18.  There is no half-time submission.  The defendant does not give evidence or call any defence witnesses. 

Defence final submissions and my view

Identification of the robber by PW1 at the identification parade

19.  Defence counsel submits that PW1 could not tell the police the robber’s facial features as his impression was flimsy, hence his identification unreliable at the identification parade.  I agree that we shall not rely on the results of the identification parade. 

Identification of the Windmill Earrings by PW2

20.  PW2 says she recognized the pair of earrings as her stock after 1 – 2 seconds of viewing based on her 4 visual criteria.  As a matter of fact, I notice from the CCTV clip that afterwards she had also spent some more time looking at the earrings placed on the platter over the counter before the female picked them up. In any event, this can be regarded as a Turnbull situation though the subject is an exhibit.  I understand that an insufficient opportunity for observation may lead to mistaken identification.  However, here she had had full opportunity to look at it before she put it down of her own accord.  It is not the case where it had disappeared before she could clearly observe or properly process a mental connection with it.  Given her familiarity with the pair of earrings based on her 4 visual criteria, I am satisfied beyond a reasonable doubt that her identification was of good quality and reliable. 

21.  Defence counsel submits that there was no marking to make it unique.  The prosecution has therefore failed to prove it was a unique pair on earth.  I do not agree. The prosecution is of course required to prove that the pair of earrings presented to her by the defendant at Shop B was actually the Windmill Earrings.  But that has nothing to do with uniqueness.  If there are 100 identical pairs in existence but the existence of 99 of them are not known to the prosecution or the defence, then those 99 pairs are not relevant to our present case.  Only this pair is relevant for the purpose of the case.  In the present case, the defence suggestion is, in a rather mild tenor, that there may be[16] a second pair on earth.      

22.  I am of the view that the prosecution has proved beyond a reasonable doubt (based on her 4 visual criteria and her confirmation[17]of not having seen or heard of any second pair like it) that the earrings presented to her by the defendant were the actual Windmill Earrings. 

Reliability or otherwise of PW2

23.  Defence counsel criticizes PW2 for her evidence that the defendant had dyed blonde hair of the lighter tone at the crown and very short hair on the two sides, none of which can be seen in the CCTV clip.  PW2 explains that she was opposite to him when she waited on him.  When she looked at his crown under the ceiling light, it was dyed in blonde.  I understand that the CCTV camera was training from an angle and elevation different from where she was.  I do not find the comparison fair to her.  As to the comment by defence counsel that the hair on his two sides does not look short, I do not find the clip clear enough to agree or disagree.  There is no solid basis to render her evidence unreliable.  In any event, the defendant’s presence there is not in dispute.    

24.  Defence counsel submits that because her evidence as to the look of his hair is unreliable, her identification of the pair of earrings is also flawed.  First, as afore-mentioned I do not find her evidence on the hair necessarily unreliable. Secondly, the pair of earrings she says was her familiar stock.  I do not find her evidence on the identification of the pair of earrings unreliable. 

Law of recent possession

25.  According to Archbold Hong Kong 2013 para 22-93 – 94:

22-93 There appears to have been widespread misunderstanding of the so-called doctrine of recent possession. The “rule” (for it is no more than the application of common sense) is that where it is proved that premises have been entered and property stolen therefrom and that very soon after the entry the defendant was found in possession of the property, it is open to the jury to convict him of burglary, and the jury should be so directed: see R v Loughlin, 35 Cr App R 69, CCA; R v Seymour, 38 Cr App R 68, CCA. This, of course, applies equally to thefts other than in the course of a burglary, whether a pick-pocketing or an armed robbery.

22-94 In R v Smythe, 72 Cr App R 8, CA, the court stressed that it is a misconception to think that recent possession is a material consideration only in cases of handling. It adopted the following passage from Cross on Evidence, 5^th edn, p 49 (now 9^th edn, p 38):

“If someone is found in possession of goods soon after they have been missed, and he fails to give a credible explanation of the manner in which he came by them, the jury are justified in inferring that he was either the thief or else guilty of dishonestly handling the goods, knowing or believing them to have been stolen… The absence of an explanation is equally significant whether the case is being considered as one of theft or handling, but it has come into particular prominence in connection with the latter because persons found in possession of stolen goods are apt to say that they acquired them innocently from someone else. Where the other evidence is that the defendant on a charge of handling was in possession of stolen goods, a jury may infer guilty knowledge or belief (a) if he offers no explanation to account for his possession, or (b) if the jury are satisfied that the explanation he does offer is untrue.”

Every case depends on its own facts. There is no magic in any given length of time. However, it is submitted that in many cases where the only evidence is that of recent possession, it will be impossible to exclude the possibility that the defendant was merely a receiver of the stolen property: in such cases, a count of burglary ought not to be left to the jury. However, that applies where recent possession is literally the only evidence. The reality is that in the great majority of cases there are other pieces of evidence that tend to point the case one way or the other. It would be impossible to compile a definitive list of circumstances that might be relevant. They will include, however, the time and place of the theft, the type of property stolen, the likelihood of it being sold on quickly, the circumstances of the defendant, whether he has any connection with the victim or with the place where the theft occurred, anything said by the defendant and how that fits in or does not fit in with the other available evidence.

Case as found

Credibility of the defendant

26.  I have already highlighted the inconsistencies in the defendant’s VRI.  Those were material aspects of his account of the visit to Shop B.  In my judgment, he was just making up a story as the VRI progressed.  I do not find him credible. 

Credibility and reliability of prosecution witnesses

27.  I find all prosecution witnesses credible and reliable.  I am aware of some slight differences in evidence but I do not find them to be of significance.  I have invariably adopted a version most favourable to the defence wherever such differences occasion. 

Proximity of time

28.  The defence does not dispute the fact that 23 minutes after the robbery of the Windmill Earrings at Shop A, the defendant entered Shop B. 

Proximity of location

29.  I find as a fact that the earrings presented to PW2 by the defendant at Shop B were the Windmill Earrings.   Shop B was in the direction of Prince Edward area and at a few streets and within walking distance from the left of the doorway of Shop A[18].      

Proximity of characteristics between the robber and the defendant

30.  According to PW1, the male was in his thirties[19].  According to the CCTV clip of Shop A, he was about 5’6”.  The sound reveals his unaccented Punti.  He looked lean and fit in his tight-fitting long-sleeved shirt.  His trousers were straight-legged and dark in colour.  His shoes were dark in colour.  He wore a light-coloured cap.  According to PW2, the defendant was in his thirties[20].  He was about 5’6”.  He spoke in unaccented Punti.  According to the CCTV clip of Shop B, he looked thin and fit in his grey-coloured tank top.  His trousers were straight-legged and dark in colour.  His shoes were dark in colour. 

31.  As regards his partly changed look at Shop B, I am of the view that it would have taken him little time or inconvenience to doff the cap and the shirt after leaving Shop A, and don the grey vest and sunglasses in order to modify his look before entering Shop B. 

Putting all proximities together

32.  Shortly after one person had robbed Shop A of the Windmill Earrings, there was a person bearing an amalgam of closely resembling characteristics, was trying to sell the Windmill Earrings at Shop B, which was within walking distance from Shop A.   The irresistible inference is that it was the same person who robbed Shop A and who tried to sell it to Shop B. 

Stupid robber

33.  Defence counsel submits that the robber would not be so stupid to try to sell the robbed property at a branch of the same company.  I do not agree.  To commit a crime is always a general stupidity and to get caught is always the result of a specific stupidity.     

Conclusion

34.  The case is proved beyond a reasonable doubt.  He is convicted as charged.