Case Information
DATE: 2025-05-07
COURT FILE No.: 4810 998 24 48105179-00
Location: Toronto
COURT: Ontario Court of Justice
BETWEEN:
His Majesty the King
— AND —
Shu Luo
Before Justice Peter Scrutton
Heard on April 14, 15, 16 and 25, 2025
Reasons for Judgment released on May 7, 2025
Counsel:
- S. Capogreco for the Crown
- J. Kuang for the Accused
Introduction
[1] Mr. Shu Luo is charged with robbing Michael Cheng and with conspiring with unknown men to commit that robbery. There is no dispute that the complainant, who ran a tea business out of a unit in a Toronto plaza, was robbed by at least 3 men on November 27, 2023. He was assaulted repeatedly during that robbery and cash and other items were stolen from him. Most of the key aspects of this unfortunate interaction were caught on video surveillance footage. The key factual issues I must decide are whether the Crown has proved that the defendant was the unmasked man in Mr. Cheng’s tea shop during the robbery and, if so, whether he participated in it.
The Evidence
[2] Michael Cheng ran his business out of a unit at 2100 Midland Ave. On the second floor of the building, it was accessible through an outside door, up a side stairwell, through an internal door, then through the door to his unit. The external and stairwell doors were usually kept open during business hours; Mr. Cheng’s unit was usually locked. He had several security cameras inside and outside the unit. Building management also operated security cameras in the stairwells and other parts of the building.
[3] Mr. Cheng does not speak English, only Cantonese. His customers make appointments to see him. A man he knew named Calvin phoned him prior to the robbery to arrange for a third party to come the shop to buy tea. Calvin said the man would be there at 2:30 p.m. Mr. Cheng did not have the man’s name or phone number. He arrived at his shop at 2:00 p.m. to meet this prospective customer.
[4] Mr. Cheng saw a man approach his unit around 3:30 p.m. via a camera in the hallway that played on a screen in his office. He let the man inside, asked the man to sit down, and began to discuss tea with him; they both spoke Cantonese. He did not know the man, whom he described as Asian, very slim and very short, aged between 30-40. He poured the man a cup of tea. The man was not really speaking to him – he kept looking at his phone. Mr. Cheng thought he was using it to play video games. Soon after, Mr. Cheng saw on the surveillance screen that three masked men were coming from the stairs to his hallway – his first thought was that they were there for maintenance.
[5] The small man stood up and opened the door to let the masked men inside. The three men began to assault Mr. Cheng almost immediately. The unmasked man demanded money, $11,000, claiming this related to a debt. Mr. Cheng said he did not owe any money and did not have any money. He was struck several times by the other men, who began to search the unit. At one point, Mr. Cheng grabbed a chair to strike back after which, perhaps coincidentally, the men fled. Mr. Cheng unsuccessfully gave chase for a short time. He watched some of the men get into a blue car and drive away on Weybright Court. He returned to the building and asked the building manager to call the police.
[6] Mr. Cheng suffered several injuries, including a fractured rib, swollen eye, and multiple cuts to his lips and head. The men stole a satchel which contained his wallet and credit cards and over $3,000 cash. Mr. Cheng was, understandably, not challenged on the substance of his account at trial, which was entirely corroborated by the surveillance footage. He disputed the suggestion that the Asian man was surprised by the entrance of the other men and was not actually involved in the robbery. He acknowledged that the small man did not commit any of the physical assaults on him. He recalled that the three men did communicate with the other man in English during their time in his unit, but he could not understand what they were saying, save for the word “money”.
Surveillance Footage from the Building
[7] Mr. Cheng and his building manager provided the police with security footage on the day of the robbery. Video from inside the tea shop clearly shows a diminutive Asian man who is wearing a bomber length jacket, with fur trim around the hood, a logo on the shoulder, and what appear to be ornamental yellow tags or straps hanging down from the left part of the back of the jacket by the waist. He arrives at the shop at 3:31 p.m.[1]
[8] Mr. Cheng poured the man a cup of tea in a clear glass mug. The man picked up the mug with his left hand and his left thumb can be seen resting on the top of the handle of the mug as he drinks from it. The man speaks on his phone. Immediately after, he gets out of his seat. He is not visible on camera letting the three men into the room but they enter immediately after he gets out and walks out of the camera’s view. Once the masked men enter, the small man covers his head with his hood and begins pointing and gesturing at Mr. Cheng as the other men crowd around him. It is 3:34 p.m. Footage from the stairwell shows all four men leaving the unit together three minutes later.
Surveillance Footage from Nearby Buildings
[9] The police canvassed other buildings nearby and received additional footage which showed the arrival and departure of the four unknown men. I ruled on the admissibility of the footage from other building cameras on the third day of trial in response to a defence objection that it had not been properly authenticated. Suffice it to say, I am satisfied with the authenticity of the footage from the other buildings that was tendered through a police witness at trial. I infer, from its coherence with the footage from 2400 Midland that was authenticated by people directly familiar with that recording system, and the viva voce evidence explaining how the police obtained the surveillance footage from 2410 Midland Avenue and 80 Weybright Court, that the videos are what they purport to be and accurately capture the events preceding and following the robbery.[2] See R. v. C.B., 2019 ONCA 380 at paras. 63-68.
[10] Video from 80 Weybright Court, across the street from 2400 Midland Avenue, shows a blue sedan arrive in the parking lot at 3:14 p.m.[3] At 3:24 p.m., a small Asian man who appears to be wearing the same clothes as the putative tea customer can be seen leaving the backseat of that vehicle and walking toward 2400 Midland Ave.[4] He returns to the car two minutes later and can be seen speaking to its occupants before leaving again and returning across the street to 2400 Midland Ave. A few minutes after that, at 3:32 p.m., three taller, hooded, masked men get out of that sedan and cross the street to 2400 Midland Ave. It is clear from their clothing that they are the same men who are caught on surveillance footage robbing the tea shop.
[11] Six minutes later, the four men can be seen running away from 2400 Midland Avenue. One man runs alone toward that street. Three others, including the Asian man, run back to the sedan at 80 Weybright Court, get in the car, and drive away.
Seized Evidence
[12] Police executed a search warrant at the defendant’s address on February 1, 2024. They arrested Mr. Luo in his bedroom and began to search for items relating to the robbery. They found a black bomber length jacket, Parajumper brand[5], sized XS, with fur trim on the hood, and two ornamental yellow straps or tags that hang down from the jacket in his bedroom. Mr. Luo’s health and bank cards were in its pocket. They also found black and white Nike sneakers, youth sized, outside the front doorway to the residence.
[13] Detective Constable Russell Hopkins compared stills of the Asian man from the surveillance footage with photos of the seized items. Images from 80 Weybright Court show the same fur trim on the hood and the distinctive yellow tab or strap hanging off the back. Images from the tea shop show black Nike sneakers with white soles, white swoosh symbol, and clear air pockets in the heel, consistent with the shoes that were seized outside the defendant’s residence. Stills from the tea shop show the same logo on the jacket’s left shoulder and a yellow tag or strap hanging from the front of the hood area which also match those visible on the jacket seized from Mr. Luo’s room.
Forensic Evidence
[14] After Mr. Luo was arrested, he was taken to the police station, booked, and fingerprinted. Special Constable Thomas Lee used a scanner to capture digital images of Mr. Luo’s hand, palm, thumb, and fingers, and uploaded them into a Toronto Police Service database. Everything was routine and he did not note any difficulties. The fingerprinting process took less than 10 minutes.
[15] D.C. Rhonda Haley is a Forensic Identification Services officer who attended the robbery scene. She was qualified, on consent, to give expert opinion evidence on the lifting, comparison, and analysis of fingerprints. She photographed the scene and began looking for trace evidence. She was aware from the surveillance footage that the suspect had drunk some tea while in the shop. Accordingly, she swabbed and fingerprinted the glass mug and some other items on the desk. She examined the mug at the scene by illuminating it with a flashlight and white powder to see if there was sufficient “ridge detail” to lift a print. She lifted five prints from it. The most relevant of these, which she labelled R3, was taken from the top of the handle of the mug. That print (and the other four) are clearly visible on photos she took of the mug at the scene. She described “R3” as “a beautiful print to lift” with lots of friction and ridge detail. Eventually D.C. Haley uploaded these prints into a Toronto Police Service database.
[16] Later, in March 2024, she was notified about a potential “match” between the prints she had lifted from the scene and a known sample – prints taken from Mr. Luo’s booking and examined both samples. She explained generally that when fingers make contact with objects, they can leave impressions on those objects from sweat or sebaceous oils. Fingerprints are visible impressions in the shape of ridges that are left on an object caused by the friction of skin pressing against it. Ridge characteristics are unique. She determined that the known and lifted samples were suitable for comparison, which involves comparing the friction ridges visible on the known impression to an impression lifted from the scene to see whether there are enough common points to begin a side-by-side analysis. This latter step involves ascertaining whether there are any common ridge paths and deviations (places where a ridge ends or bifurcates).
[17] D.C. Haley demonstrated, with side-by-side images of the respective prints, where she identified commonalities in the ridge characteristics and how she marked the common deviations. She opined that there was sufficient quality and quantity of common sequences to conclude that the impression on the mug’s handle was made by Mr. Luo’s thumb. She explained that there is no bright line threshold for this determination – she would be satisfied that the lifted and known print were the same if she were able to identify a dozen commonalities. She identified over 20 common ridge deviations between the print from the mug and Mr. Luo’s booking print; these were not the extent of the common deviations but a sufficiently high number for her to be satisfied that she did not need to continue to look for additional common points.
The Parties’ Positions
[18] Ms. Haley was not challenged in cross-examination on the substance of her opinion or on the manner in which she completed her work. Defence counsel accepts that it can be inferred from her evidence that the thumb print on the mug taken from the scene was made by Mr. Luo but submits that this does not prove that Mr. Luo is the Asian man captured on the surveillance footage because D.C. Haley’s analysis cannot date when the print was left or establish that it was left during the robbery rather than before it. He argues that the case against Mr. Luo is entirely circumstantial and that reasonably alternative inferences negate those that the Crown seeks to draw.
[19] Specifically, he argues that the seized clothing cannot be relied on to prove identification because the items are from popular brands with no unique hallmarks. The surveillance footage does not allow the trier of fact to conclude that the defendant is the man in the tea shop, and no witness so identified him. Even assuming that the defendant’s identity is established, there is no audio from any of the footage, so it is a reasonable possibility that the men, who were unmasked when they were visible in the vehicle with the customer earlier, decided to disguise themselves and rob the store without his knowledge, encouragement, or assistance.
[20] The Crown argues that overwhelming evidence supports the defendant’s identification as the person in the tea shop and in his participation and orchestration of this robbery. She relies on distinctive markings on the clothing the man was wearing during the robbery – which completely match clothing the appellant was arrested with – and the fingerprint analysis. The totality of the evidence proves definitively that he was the putative customer.
Relevant Legal Principles
[21] Mr. Luo is presumed innocent of these charges. The Crown must prove his guilt beyond a reasonable doubt, a burden which never shifts. Mr. Luo can only be found guilty of an offence if, after considering all of the evidence, the Crown has proved each element of each offence beyond a reasonable doubt. If I am not sure, based on all the evidence, or the lack of evidence, that Mr. Luo committed an offence, I must find him not guilty of it.
[22] To establish Mr. Luo’s guilt, the Crown must prove beyond a reasonable doubt that he was the person caught on surveillance footage inside 2400 Midland Ave. and that he participated in the robbery as a principal or party, and/or conspired with others to commit the robbery. Because the case against Mr. Luo is circumstantial, not only in terms of the identity of the Asian man in the shop but also of his knowledge of the robbery and participation in it, he may only be found guilty of an offence if his guilt is the only reasonable inference that the evidence permits: R. v. Villaroman, 2016 SCC 33.
Factual Findings with Respect to Identification
[23] I agree with counsel that I cannot be satisfied that Mr. Luo is the putative customer from my own in-court comparison of him and the man in the various videos. I do find, however, that the defendant and the man on the video bear a resemblance – both are diminutive Asian men.[6] The only obvious dissimilarity I observe relates to hair style, which is not pronounced and, regardless, is not an immutable characteristic.
[24] I find that the jacket and sneakers seized from Mr. Luo are identical to the items worn by the customer in the tea shop. While the jacket is clearly not custom made, its ornamental yellow parachute straps are very distinctive. The sneakers are certainly a popular brand and style. The combination of the resemblance I have identified, the very distinctive jacket, and the same colour, brand, and style of sneakers, is cogent, compelling evidence of the fact that Mr. Luo is the man who posed as the customer.
[25] The fingerprint evidence, if accepted, when stacked alongside the other evidence, leaves no room for doubt that the defendant is the man from the tea shop. D.C. Haley was qualified as an expert in this area on consent and her opinion that the thumbprint from the mug at scene and the print of Mr. Luo’s thumb taken upon his arrest were made by the same person was not challenged at trial. Irrespective of the parties’ positions, I am satisfied that this evidence meets the Mohan criteria for admission and should be accepted. It is clearly relevant to a material issue (identity), is not something that a trier of fact could appreciate without assistance, is founded on otherwise admissible evidence, and is the opinion of someone with specialized training who does this forensic analysis as a regular part of her duties. Further, there is nothing novel about this field of expertise – fingerprint evidence is commonly tendered in courts, such that I am satisfied it is sufficiently reliable to be admitted. Its probative value to the issue of identity is high. I am satisfied there is no prejudice associated with the admission of the evidence because I understand its limitation as something that it is not, on its own, sufficient to implicate the defendant in the commission of an offence: R. v. D.D.T., 2009 ONCA 918 at para. 14; R. v. Mars at para. 19.
[26] I accept D.C. Haley’s opinion that the defendant left the thumbprint on Mr. Cheng’s glass mug. She was able to clearly explain her methodology, she documented every step in the process of her work with digital images and visual aids, and she transparently demonstrated how she came to her conclusion.
Factual Findings with Respect to the Charges
i) Robbery
[27] That Mr. Cheng was robbed is incontrovertible. I find as a fact that Mr. Luo was an active participant in this robbery. In my view, no other inference is available, let alone reasonable. He arrived with the other robbers. He opened Mr. Cheng’s door so that they could enter the shop. Rather than appearing surprised or as a bystander, he covered his head with the hood of his jacket and gestured and pointed at Mr. Cheng repeatedly as the men crowded around him and roughed him up. From my review of the video, he appears to speak to Mr. Cheng and the other men during this interaction. I accept Mr. Cheng’s evidence that the defendant was demanding money from him in Cantonese while speaking to the other men in English during the robbery. The defendant attempted to keep his hood up as he fled to the car.
[28] I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Luo was a party to Mr. Cheng’s robbery. The fact that the defendant did not himself physically assault Mr. Cheng or handle any of Mr. Cheng’s stolen property is immaterial to his liability, given the overwhelming evidence of assistance and participation.
ii) Conspiracy
[29] A conspiracy is an agreement between two or more people to commit a crime. To prove the offence, the Crown must prove that there was a conspiracy, that its object was the indictable offence of robbery, and that the defendant was a member of it. Proof of the agreement may be established in a variety of ways, including by inference from the manner in which the substantive offence was committed: R. v. Yumnu, 2010 ONCA 637 at paras. 337-342; R. v. Carter, [1982] 1 S.C.R. 938. If the prosecution has proved the agreement beyond a reasonable doubt, it must then prove that the defendant was a member of that conspiracy.
[30] The case against Mr. Luo on this count is circumstantial and the only proof of an agreement flows from the way this robbery was committed. Mr. Luo arrived with the three other men, left them in the Weybright Court parking lot while he went to examine 2400 Midland Ave., returned to speak to them (presumably to relate his observations of the building), gained entry to the shop on false pretences, provided the other men access to the shop, participated in the robbery with them, fled with them, and escaped with two of them in the same car they had arrived in.
[31] This was a carefully orchestrated robbery. I am certain that it was planned and did not happen on the sudden. The advanced planning and coordination are highly probative of an agreement between the men to rob Mr. Cheng. I accept Mr. Cheng’s evidence that the defendant did not engage in any meaningful discussions about purchasing tea in the early part of their interaction. The robbery began immediately upon the masked men’s entrance to the tea shop. I find that the robbery was the sole reason for their attendance there. Mr. Luo’s actions clearly establish his knowledge that the men who arrived did so for the purpose of committing this robbery. I find that the robbery was also the defendant’s sole reason for attending the tea shop that afternoon. I am satisfied beyond a reasonable doubt that the four men who robbed Mr. Cheng were part of a conspiracy, that the conspiracy was to commit this robbery, and that the defendant was a member of this group who played a critical role in the plot.
[32] I find Mr. Luo guilty of both counts.
Dated: May 7, 2025
Justice Peter Scrutton
Footnotes
[1] Police verified the time stamps on this surveillance footage on the day of the robbery when they obtained the video from Mr. Cheng.
[2] There is a 7-minute gap in this footage from 3:17 p.m. to 3:24 p.m., a few seconds before the Asian man leaves the vehicle. No evidence explains why this period was not recorded. Even though it is incomplete, I am satisfied that relying on it would not cause any prejudice to the defendant because it runs continuously during the most pertinent time period – before, during, and after the robbery.
[3] D.C. Hopkins testified that he believed the times indicated on this footage were accurate but did not explain the basis for that belief. Regardless, I accept that times are accurate because of how the footage on this video coheres with the footage and verified timestamps from 2400 Midland Ave. Additionally, the footage from 80 Weybright Court captures part of 2410 Midland, such that what is caught by one camera can be related to the same activity captured by the other camera.
[4] Both wore a black, fur-trimmed, hooded bomber jacket with ornamental yellow straps, black pants, and black Nike sneakers with air pockets and a white swoosh and lettering.
[5] D.C. Hopkins was familiar with this brand and explained that the distinctive yellow tags or straps are a signature feature that relate to parachuting.
[6] See R. v. Nikolovski, 111 C.C.C. (3d) 403 (S.C.C.); R. v. Brown, 2009 ONCA 563 at para. 26; R. v. Cole (2006), 69 W.C.B. (2d) 760 at para. 60 (Ont. S.C.J.); R. v. John, 2010 ONSC 6085 at para. 15. The shoes seized from outside the defendant’s residence are size 5Y and the jacket seized is size Extra Small.