HKSAR v. JOPPA MARK ANDREW also known as HOLCOMB CARY THOMAS

DCCC 1069/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1069 OF 2014

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REASONS FOR VERDICT

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Introduction

1.  The defendant, a visitor from the United States, faces a total of three charges, namely attempted robbery (Charge 1); breach of condition of stay (Charge 2); and failing to surrender to custody without reasonable cause (Charge 3).  He pleaded guilty to Charges 2 and 3 at the outset and admitted the facts pertaining to those charges.  However, he pleaded not guilty to Charge 1 for which he was put on trial.  The sentence of Charges 2 and 3 are adjourned pending the outcome of the trial. 

2.  In a netshell, the prosecution’s case for Charge 1, as contained in the Summary of Facts which was adopted as the prosecution’s opening, is that at about 07:00 on 26 July 2014, the defendant entered the cashier section of a 7-Eleven Store in Kowloon City, demanded money from the store assistant Mr Fung (PW1) and produced a knife during the course of the incident.

3.  On the other hand, the defence case was that the defendant had not in fact attempted to rob anyone, that he was labouring under a psychotic stage at the time and that he had no intention to commit any offence because of his psychiatric condition.

The issues

4.  The major issues of the present case are as follows:-

(i) whether the evidence of PW1 as to what the defendant had done is reliable; and

(ii) if so, whether the defendant had the necessary mens rea.

5.  To prove its case, the prosecution mainly relied on the evidence of PW1, together with a CCTV footage from the 7-Eleven Store which captured what the defendant had done inside the store from different angles.  It has to be noted, however, that neither the prosecution nor the defence examined PW1 on the CCTV footage.  In fact, Mr Hotten, counsel on fiat, informed the court that the prosecution had originally not intended to rely on the CCTV footage and that it was adduced by way of admitted facts only at the request of the defence. 

6.  The identity of the defendant was not challenged, nor was the fact that he was arrested by the police on 28 July 2014.  There was also a set of photographs showing the exterior and interior of the 7-Eleven Store.

7.  Both the prosecution and the defence had adduced expert evidence by calling their respective psychiatrists to give evidence.  Dr Lui, Visiting Psychiatrist of Siu Lam Psychiatric Centre, was the expert for the prosecution.  Dr John Wong was the expert for the defence.  Their expertise was not challenged.  However, as can be seen in due course, their opinions are in fact similar.

8.  The defendant exercised his right by electing not to give evidence.

As to issue (i): the incident

Evidence of PW1

9.  PW1 said at the time when the defendant entered the store, there were only two people working, his female colleague and him.  The defendant was wearing a cap, a T-shirt and a pair of jeans.

10.  PW1 said that whilst he was sorting out goods outside the cashier counter, he observed that the defendant had stayed for a while near the shelf displaying fast food which was on the left hand side of the cashier counter.  After PW1’s colleague had gone to the store room, the defendant entered the cashier section.  Seeing that, PW1 asked the defendant what he was doing in Punti, as PW1 could not speak English.  The defendant then said to him in English, “Give me money!”.  Hearing that, PW1 replied in English, “Call police”, went to the side of the counter and picked up a yellow plastic “anti-slip” sign from right at the foot of the shelf displaying fast food.  PW1 explained that he picked up the yellow plastic sign because when the defendant came in, he had seen a long substance protruding from the right trouser pocket of the defendant.  PW1 did not know what it was and was scare. 

11.  PW1 said that at this juncture, the defendant used his right hand to take out a knife from his right trouser pocket, removed away the sheath, pointed the knife at PW1 and then quickly put it back to the sheath.  Seeing this, PW1 said “Call police” again. Then, the defendant came slowly out of the cashier counter, walked to the entrance of the store, picked up his rucksack and left.  PW1 said the defendant had spent about 1 to 2 minutes at the till.

12.  PW1 confirmed that he had a good look of the knife.  He demonstrated in court the length of the knife with his fingers.  After he was given a ruler for reference, PW1 said the knife was about 7 to 8 inches long.  In cross-examination, he said that his view of the knife was not obstructed by the counter.  PW1 explained that at the time when the defendant took out the knife, he (PW1) was standing on the side of the shelf displaying fast food.  He disagreed that his view of the knife was obstructed by the stock either, as in front of him was the access leading to the cashier area.  When the court asked PW1 whether by 7 to 8 inches he was referring to the length of the handle and the blade, PW1 asked back whether it included the sheath.  The court then asked what exactly PW1 was referring to when he said the knife about 7 to 8 inches in length.  Eventually, PW1 said that as the defendant only showed the blade of the knife for a very short while, so when he was describing the length of the knife, he was referring to the length from the tip of the handle to the end of the sheath. 

13.  PW1 also said that whilst the defendant was inside the cashier counter, the defendant had tried to open the till twice by touching the screen of the till without success.  PW1 thought that it was because the language shown on the screen was Chinese which the defendant did not understand.

Assessment of PW1’s evidence

14.  I note that PW1 appeared to be very tired and very slow when he was giving evidence.  I also note that there were occasions when he showed difficulties giving a relevant answer to the question asked of him.  PW1 did not appear to be a very impressive witness.  He told the court that he had worked all night before giving evidence.  I remind myself, however, that demeanour may be not a reliable guide for assessing a witness.  Rather, the inherent probability of his or her evidence is a more objective and reliable criteria for that purpose.

15.  I note that the identity of the defendant was not challenged.  Also, it was not put to PW1 in cross-examination that the defendant had not entered the cashier section of the 7-Eleven Store.  Although the knife has never been recovered, it was not put to PW1 that the defendant did not have any knife with him at the relevant time.  Besides, it was also not put to PW1 that he had any motive to lie.  What was put to PW1 in cross-examination was that he had exaggerated his evidence. 

16.  The examination and cross-examination of PW1 have exposed the following difficulties in his evidence:-

(a) The defendant was not, as PW1 said, wearing a T-shirt and a pair of jeans when he entered the store. It can be seen from the photographs captured from the CCTV footage that the defendant was naked on his upper body with a dark clothe hanging on his left shoulder and he was wearing a pair of shorts;

(b) PW1 can only speak very limited English. As regards his evidence that the defendant had said at the material time, “Give me money”, he agreed under cross-examination that he could not rule out the possibility that the defendant may have said something else to him;

(c) PW1 admitted that he had not mentioned in any of his three statements to the police that the defendant had removed the knife from the sheath and pointed the knife at him or that the defendant had attempted to open the till; and

(d) Despite the detailed evidence PW1 gave about the defendant removing the knife from the sheath, he eventually admitted that he had not in fact seen any sheath.

17.  In view of the above, PW1’s evidence is unsatisfactory in important areas and therefore I am unable to attach much weight to his evidence, especially whether the defendant had (i) asked him for money; (ii) pointed a knife at him; and (iii) attempted to open the till, unless his testimony is supported by some other evidence.

18.  That leads me to the CCTV footage.  As I have said, I am surprised that neither the prosecution nor the defence had sought to examine PW1 on the footage.  The CCTV system had 3 cameras capturing the interior of the store from different angles. Channel 1 (which looks down on the entrance and the inside of the cashier counter) and Channel 3 (which looks at the cashier counter from the far end of the store) are of importance.  I have watched carefully the footage several times, both in court and in chambers.  The following can be seen from the footage:-

Time	Channel	Description
07:08:52	1 & 3	The defendant arrived, dumped his rucksack at the entrance of the store, went inside and wandered about looking at things and with his hands in the trouser pockets.
07:10:37	3	The defendantwent inside the area behind the cashier counter.
07:10:46	1	PW1 was standing in front of the cashier counter busy sorting out goods.  When PW1 saw that the defendant was inside the cashier, in a split second PW1 dashed towards the left side of the counter.  It can then clearly be seen that the defendant had a knife in his right hand, which was passed to his left hand and back again to his right hand in quick succession.  Afterwards, the defendant went towards the inner (right) end of the counter area before he returned to the middle of the counter.
07:10:50	3	PW1 was seen rushing to the left side of the cashier counter (right of the screen), picked up a yellow plastic sign from the floor and looked at the direction of the defendant.
07:10:53	3	There appears to be some conversation/ confrontation between the defendant and PW1, the former still inside the counter area at somewhere in the middle, whilst the latter was standing near the opening end of the counter on the left.  During which time, the defendant moved his right arm up and down but it is difficult to see whether he was holding anything.
07:11:23	3	The defendantleft the area behind the cashier counter.  As the defendant walked past PW1, his hands were not holding anything.
07:11:33	1	The defendant picked up his rucksack at the entrance of the store and left.

19.  Judging from what can be seen in the CCTV footage, I am satisfied that the defendant had at one stage taken out a knife when he was inside the cashier area.  I am satisfied that PW1 had seen the defendant’s knife and that was the reason why PW1 rushed towards the side of the cashier counter and took up a yellow plastic sign.  I am also satisfied that there had been a confrontation between PW1 and the defendant after which the defendant walked out of the cashier area without having taken anything from any of the tills, retrieved his rucksack and left.

20.  However, there are some important discrepancies between PW1’s evidence and what the CCTV footage shows:-

(a) contrary to what PW1 said in court, he was actually in front of the cashier counter when the defendant was taking the knife out;

(b) it does not appear that PW1 and the defendant had engaged in any conversation before PW1 went to pick up the yellow plastic sign. The CCTV footage shows that in a second’s time after PW1 had noticed that the defendant was inside the cashier area, he dashed off from the front of the counter to its left;

(c) it does not appear that the defendant had pointed the knife at PW1 as PW1 had suggested in court; and

(d) Channel 1 of the CCTV clearly shows that there were two tills at the counter. However, at no point is the defendant seen to have attempted to open or touch any of the tills.

21.  I find that the CCTV footage reveals more flaws in PW1’s evidence than what have already been revealed by the cross-examination.  It is no wonder, therefore, that the prosecution originally had no intention to produce the CCTV footage as evidence to support its case.

22.  In view of all of the aforesaid problems with PW1’s evidence, I am simply unable to be satisfied beyond reasonable doubt the incident had happened in the way PW1 testified in court.  That said I am satisfied that the defendant at one stage was holding a knife when he was at the till. One possible inference from this which a jury is entitled to draw is that the defendant did intend to steal or to rob. There is sufficient in my view to give rise to a case to answer on Charge 1.  Whether it is also sufficient to support a conviction is another matter.

As to (ii): mens rea

The expert evidence

23.  I will not deal with the expert evidence at length.  It suffices for me to say the following.

24.  As aforesaid, there are not a lot of differences between the opinions of the prosecution expert and the defence expert.  There is no dispute that the defendant was addicted to amphetamine.  Based on what he had been told by the defendant and his examination of the defendant, Dr Lui said that at the time of the alleged offence, the defendant was apparently hallucinating, hearing voices the defendant believed to be aliens able to possess people and turn them against him.  Dr Lui opined that the defendant was in a state of psychosis which was induced by amphetamine.  Dr Lui said further that it was not that the defendant was so confused at the time that he did not know what he was doing (for example, with the knife), but his reasoning was warped and his belief driven by delusional ideas of persecution and perhaps fear for his own safety. 

25.  As regards the defence expert Dr Wong, he similarly opined that the defendant was suffering from amphetamine induced psychotic disorder at the material time.  As a result of his mental disorder, he was pre-occupied with the psychotic symptoms and his ability to reason and make rational decisions was impaired as a result. 

26.  Both Dr Lui and Dr Wong agreed that the defendant may be able to function cognitively.  Dr Lui said, however, the defendant’s perception of the reality would be so overwhelmed by his psychotic condition that the purpose of his action may not be the same as what an observer thinks it is.  Similarly, when asked by the court whether it was possible that the defendant thought at the time that he was fighting evil spirits when his knife, Dr Lui would not ruled out that possibility.

Assessment of the expert evidence

27.  At the material time, PW1 was alone with the defendant, as PW1 female colleague was inside the storeroom and was apparently not aware of what had happened.  There were no customers.  From what can be seen in the CCTV footage, the defendant was of a much stronger built than PW1.  Moreover, the defendant had a knife. Therefore, the defendant could have easily overpowered PW1.  The fact that the defendant had neither attempted to prize open any of the tills nor to take anything valuable away in my view lends support to the evidence of the defence expert that the defendant might have been labouring under hallucination.  Such a possibility is not rebutted by the prosecution expert. 

28.  Therefore, even assuming that it is possible for the defendant to form an intention to rob or to steal, I am simply unable to be satisfied so as to be sure that the defendant was not labouring under hallucination at the material time.  Further, I am unable to be satisfied so as to be sure that the defendant went into the cashier area with intent to rob or to steal.  As Dr Lui agreed, the defendant might have thought that he was fighting evil spirits with the knife. 

Verdict

29.  With all the flaws in PW1’s evidence, I have difficulties relying on his evidence to convict.  Furthermore, the psychiatric evidence provides an additional reason for doubting the prosecution’s case.  The two factors add together means that I am unable to be satisfied beyond reasonable doubt that the defendant had demanded money or that he had the intention to rob or to steal.  Furthermore, because of my doubt of the reliability of PW1’s evidence, a verdict of not guilty by reason of insanity is also inappropriate.

30.  In all the circumstances, although I find as a fact that the defendant had taken out a knife when he was behind the cashier counter and that his conduct is very suspicious, I have no choice but to find that the prosecution has failed to discharge its burden of proving beyond reasonable doubt that the defendant had committed the attempted robbery as pleaded in Charge 1. 

31.  Therefore, the defendant is acquitted of Charge 1.