HKSAR v. CHAN YEE LAP AND ANOTHER

DCCC 513/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 513 OF 2015

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Reasons for Verdict

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1.  In these proceedings, the defendants Chan Yee-lap (D1) and Chan Kwok-chuen (D2), were jointly charged with “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  D1 pleaded guilty to the charge.  He was convicted upon his plea and admission of facts.

3.  D2 pleaded not guilty. The trial therefore only concerned D2. 

Allegations

4.  The prosecution’s case, simply put, was that the defendants acted together to burgle into a noodle shop situated in Sai Yee Street (the said premises) and stole a quantity of cash, a safe with cash inside, and the other properties particularised in the charge.  When the party was taking the stolen safe up the rooftop of D1’s flat with the intention of forcing it open there, they were seen by two police officers who happened to be on duty thereon.  D1 was arrested on the spot while D2 made good his escape.  Although D1 was the one who broke into the premises in question, the prosecution contended that D2's participation in the planning and the execution of the burglary rendered him equally liable as an accomplice.

Evidence

5.  It was not disputed that there was a burglary in the said premises in the evening between 20^th and 21^st March 2015 and that D1 was one of the participants[1]. The only issue was whether D2 was involved in the burglary.

6.  To this end, the prosecution relied on the admitted evidence (P1), the oral evidence of the two police officers who intercepted D1 and witnessed the escape of the other male whom the prosecution contends to be D2, but mainly on the evidence of D1 who offered to give evidence after his conviction.

The Undisputed Evidence

7.  At about 0208 hours on 23 March 2015, D1 broke into the premises in question at 123 Sai Yee Street and stole the properties as listed in the charge, in particular, a safe containing cash $19,810.

Oral Evidence

8.  At 0312 hours, the two police officers on duty on the rooftop of 50D Wing Hong Street, Cheung Sha Wan, saw D1 walking up to the rooftop.  Behind him was a Chinese male wearing a red T-shirt and holding a safe.  The Chinese male fled before the police officers managed to apprehend him.  PW1 confirmed that the stolen safe was from the premises.  There were prying and scratching marks on the sides and the combination lock of the stolen safe.

9.  Subsequent examination of the stolen safe also confirmed that the right forefinger-print and right middle fingerprint on the top of the stolen safe belonged to D2.

10.  All of the stolen properties, together with a pair of pliers, two crowbars and a pair of gloves, were recovered from D1’s flat.  At the rooftop D1 denied either knowing the Chinese male or ownership of the stolen safe.  Under caution, D1 did not furnish any information about the Chinese male.

11.  Between 0034 and 0323 hours on 23 March 2015, on 14 occasions D1 and D2 were in contact through their mobile phones, five were in the form of SMS[2].

CCTV Images

12.  There were CCTV cameras installed outside 52 Wing Hong Street. They captured, at 03:07:02 to 03:07:04 hours on 23 March 2015, the images of two men, walking along the aforesaid street.  The one in front was a carrying a large, seemingly heavy bag slung over his shoulder, while the man behind him was holding onto a large rectangular object against his torso with both hands.

13.  The quality of the image is not good enough to see their faces clearly.  The man behind appeared to be wearing a blueish purple T-shirt[3]. At 03:14:51 hours, the same man in the blueish purple T-shirt was seen walking away in a different direction. This time he was empty-handed[4].

Evidence of Chan Yee-lap (D1)

14.  The direct evidence that linked D2 to the scene was the testimony of D1.

15.  According to D1, D1 and D2 had been acquaintances since early 2012.  At some point D1 entrusted D2 with five pieces of jade pendants for selling.  Although D2 had paid part of the sale price (HK$9,000) to D1, about HK$80,000 was still outstanding.  On about 22 March 2015, D1 agreed to settle the debt in the form of doing a burglary together, meaning D1 would take the proceeds of the crime as satisfaction for the money owed by D2.

16.  On the evening of 23 March 2015, the duo met up on the ground floor of D1’s home at 50D Wing Hong Street, Cheung Sha Wan.  D1 brought with him tools for the purpose of the burglary.   They took a taxi to Mongkok to an area familiar to D1 to look for a target and eventually decided on the said premises.

17.  Although the parties initially agreed that D1 would be the lookout while D2 would go in to steal, after D1 cut the brass padlocks and opened the gate, D2 was not willing to go in, saying he did not know how to.

18.  At the end, D1 went alone inside the restaurant, found the valuables including the stolen safe, and then used his mobile phone to instruct D2 to meet up at the back door in the rear lane. Then they took a taxi to go back to D1’s flat in Wing Hong Street.

19.  It was about 3 am that the taxi arrived in Wing Hong Street.  D1 took care of the taxi fare while D2 got off to fetch the safe from the boot of the taxi.  He carried the safe up to D1’s top floor flat on the 5th floor.

20.  Inside his flat, D1 tried to pry open the stolen safe with a screwdriver but without success.  He then suggested to break it open with a hammer; and to do it on the rooftop lest the noise would arouse suspicion from the neighbours. So D2 carried the safe to go up to the rooftop while D1 carried the tools. It was then the police appeared.  While D1 was being questioned, D2 made good his escape.

21.  D1 recognised himself and D2 in P4A.  He also identified the entries in the telephone record (paragraph 19 of MFI-1) as communications at various stages of the robbery between him and D2 and explained the contents of each communication: -

• 1:32:35 hours
  D2 called to advise D1 that he had arrived at the ground floor of D1’s building.
• 02:00:31 hours
  D1 called D2 when he was inside the restaurant.
• 02:02:50 hours
  D2 called back
• 02:23:33 hours
  D1 called D2 again from inside the restaurant.
• 02:37:34 hours
  D2 called back, D1 told him to meet up at the rear exit.
• 03:20:23 hours
  D1 called D2 after he was intercepted by police officers, telling him to come back, whereupon D2 hung up.

22.  Upon cross-examination, D1 stated that he first decided to become a prosecution witness on 12 September 2014 because, amongst other reasons, he noted D2 had money to order private meals whilst in custody in Lai Chi Kok but had been stalling to repay his debt.  He felt that he did not need to protect D2 any more.  He also stated that his desire to tell the truth was the main reason.  Upon further question, D1 conceded that he knew if he gave evidence for the prosecution, his sentence would be reduced but insisted that the main reason was to tell the truth.

23.  D1 also agreed that up to mid-September, he had not disclosed the identity of D2 to the police.  He agreed that while they were both in custody at Lai Chi Kok, D1 still treated him as a friend and even recommended a lawyer to him.  However, he insisted that he never fully trusted D2 and he considered the latter a habitual liar.

24.  D1 admitted that on two occasions, his wife lent money to D2’s wife to pay for D2’s legal fees but stated that, on both occasions, he had no prior knowledge, nor did he approve of the same.

Assessment of D1’s Evidence

25.  D1 certainly cannot rely on his track record to gain the trust of this court.  He has a long criminal record involving violence, dishonesty and dangerous drugs.  His transgressions can be dated all the way back to 1983.  He had been to prison on numerous occasions.  As revealed during cross-examination, at present he is also subject to an ICAC investigation.

26.  In addition, D1 is a co-accused to the charge against D2.  He has pleaded guilty to and been convicted of the crime and his sentence is adjourned pending the outcome of this trial.  He admitted that he knew, by giving evidence, his sentence would be reduced.  Of course, that will depend on whether or not the court accepts his evidence. I remind myself that I must assess his evidence with an extra pinch of salt as

“The accomplice who has participated in criminal activities will hardly be a good and veracious witness”. He may also have all sorts of personal reasons to incriminate the defendant. One reason is to obtain a benefit such as a more lenient sentence for lessened culpability, or a reduction in sentence if he had assisted the prosecution in securing the defendant’s conviction. He may also have grudges against the defendant and, as an act of revenge, turns his back and gives evidence as a prosecution witness against the defendant[5].”

27.  Section 60 of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong) has abrogated the requirement that the court must warn itself of convicting a defendant on the evidence of an accomplice.  But it is still incumbent on the undersigned to examine the whole of the evidence in order to decide if the testimony of the accomplice is to be supported by any other evidence and, if unnecessary, warn myself of the dangers of conviction on the testimony of an accused before relying on his evidence[6].

28.  In spite of his previous record and his status as an accomplice, it is the strength or otherwise of D1's testimony that I have to consider.  In my view, D1 gave a clear, coherent and firm account of the background of his relationship with D2 and what had transpired during the night of the burglary.  It was also consistent with his witness statement on 17 September 2015, MFI‑2.  On its own, I cannot find any logical fault or inherent incongruity in this account.  He stood unshaken under cross-examination.

29.  Bearing in mind the dangers of relying on the evidence of their accomplice and the possible reasons for lying to this court, I found D1 forthcoming in stating that he knew his sentence will be reduced by giving evidence.  He did not shy away from telling the court about his initial misgivings of D2 and the reason why he decided to stop concealing D2’s identity.  I also note that he had not made any attempt to depict his own involvement in a more favourable light, what he said was in effect an admission that he took an active role in the planning and execution of the burglary.

30.  I also note the details furnished by D1 on how he came to know the defendant; the dealing concerning the jade pendants; how the restaurant was chosen as a target because it was located in a quiet street and was locked up with two brass locks that were easy to break open; how D2 came to be the one who carried the stolen safe from the taxi to D1’s flat and to the rooftop.  In my view, such details are indicative of the veracity of his account.

31.  D1’s evidence has also been substantially supported by other evidence in this case:

(1) The account of how he met up with D2, the exact manner of break-in and the aftermath of his arrest. (his attempt to find D2 on the phone) have been consistent with the telephone record of that night.

(2) His description of how he came back to his flat with D2 in tow, with the safe, had been supported by CCTV footage.

(3) Shortly after D2 managed to flee the scene, the CCTV captured the image of the same person going in the opposite direction. That in fact confirms D1’s account of what had happened after he was stopped by the police and how D2 made good his escape.

32.  As shown in the CCTV footage, the man carrying the safe appeared to be wearing a short-sleeved T-shirt in blue colour.  D1, under cross-examination, stated that D2 wore a blueish purple T-shirt whereas, according to the Admitted Facts (MFI-2) the two police officers on the rooftop saw the man behind D1 was wearing a red T-shirt.  In my view, this is not an inconsistency. Purple is the mixture of red and blue.  It is also a physical fact that all perceptions of colours are a trick of light on the human brain.  Different persons perceive colours differently.  Colours also change with the quality or colour of the light itself, hence the same object would appear in different colours when seen in sunlight and, for example, in coloured neon light. 

33.  Lawyer for the defence had cross-examined extensively on the apparent discrepancy between D1’s testimony in court and witness statement.  The latter initially stated that D1 and D2 met inside D1’s apartment whereas, in court, D1 stated that they met on the ground floor of his building.  In fact, this point had been clarified on the final paragraph of D1’s  statement and I do not see any inconsistency, nor do I see how it could affect D1’s overall credibility. 

34.  At the end of the prosecution’s case, I found that there was sufficient evidence for a case to answer, which simply meant that the trial went on. 

35.  The defendant elected not to give evidence or call other evidence.  This is his right and no adverse inference could be drawn against him.  It does not affect the prosecution burden to prove the case, it simply means the court only has the prosecution evidence to consider.

36.  Having considered the evidence as a whole, in particular the matters referred to above, I have come to the conclusion that D1 gave a full and accurate account of what had transpired in the burglary.  I accept his evidence and find beyond any reasonable doubt that D2 had agreed to carry out the burglary of the restaurant.  He stood on the outside as a watch-out and later went to the rear door to transport part of the stolen property.  I am satisfied that he was the one captured in the CCTV footage as carrying the stolen safe.  

37.  I find him guilty as charged.