R. v. Chen, 2023 ONSC 662

Court File and Parties

Court File No.: CR-22-91100925 Date: 2023-01-26 Ontario Superior Court of Justice

Between: His Majesty The King And: Bin Chen, Defendant

Counsel: Jacob Wilson, for the Crown Bin Chen, Self-Represented Brian Irvine, Amicus curiae

Heard: November 21, 22, 24, 25, 28 and 30, 2022

Reasons for Judgment

MCKELVEY J.:

Introduction

1This case arises out of an alleged home invasion in the early morning hours of May 6, 2020. The complainants allege that several individuals entered their home while they were sleeping, physically assaulted them and stole money and other valuables including an iPhone. There were four individuals who resided in the home at the time of this incident. They were Mr. Conrad Leung, his wife Sara Wu, and their two children, Calvin and Christopher Leung.

2After the incident had occurred 911 was called at 5:26 a.m. Subsequently, Calvin Leung noticed that his cellphone was missing. He was able to track it with the benefit of a computer program on his laptop to a Comfort Inn located at 8330 Woodbine Avenue. At the Comfort Inn police initially arrested an Asian male identified as Mr. Zhen Zhen who had a key card to a hotel room. It was subsequently determined that the key card was connected to Room 242 at the Inn. Police then arrested three individuals in Room 242. They were identified as a black male, Mr. Kwabena Asare, another black male, Mr. Elijah Bishop and another Asian, Mr. Bin Chen, who is the defendant in this action.

3Mr. Chen stands charged as follows:

1. THAT, on or about the 6th day of May in the year 2020 at the City of Vaughan in the Regional Municipality of York did, in committing an assault on Cai-Yun WU, wound, maim, disfigure or endanger the life of the said Cai-Yun WU, and thereby commit an aggravated assault, contrary to Section 268, subsection (2) of the Criminal Code.
2. AND FURTHER THAT, on or about the 6th day of May in the year 2020 at the City of Vaughan in the Regional Municipality Of York did use a weapon, namely handgun, to rob Calvin LEUNG of a cell phone, contrary to Section 343, Subsection (d) of the Criminal Code.
3. AND FURTHER THAT, on or about the 6th day of May in the year 2020 at the City of Vaughan in the Regional Municipality Of York did, without lawful authority confine Chris LEUNG, Calvin LEUNG, Conrad LEUNG and Sara WU, contrary to Section 279, Subsection (2) of the Criminal Code.
4. AND FURTHER THAT, on or about the 6th day of May in the year 2020 at the City of Vaughan in the Regional Municipality of York did break and enter a dwelling-house situated at 132 Rumsey Road, and commit therein the indictable offence of robbery contrary to Section 348, subsection (1), clause (b) of the Criminal Code.

4With respect to Count 1, I would note that Cai-Yun Wu is also known as Sara Wu and is the wife of Conrad Leung.

5I would also note that in closing submissions, the Crown advised that they are no longer pursuing a charge of aggravated assault against Mr. Chen. Instead, the Crown asserts that Mr. Chen should be convicted of the lesser included offence of assault causing bodily harm. This request was made on the basis that the Crown did not tender scientific or medical evidence of the nature of Ms. Wu’s injuries and that her non-expert testimony about the nature of her injuries was insufficient to establish beyond a reasonable doubt that she suffered a “wounding” or “maiming” injury as required for a conviction of aggravated assault.

6Prior to the trial, Justice Fuerst made an Order dated October 19, 2022, pursuant to s. 486.3(3) of the Criminal Code that legal counsel be appointed to represent Mr. Chen solely for the purpose of cross-examining the complainants. During the course of the trial I made a further order that the counsel appointed by Justice Fuerst, namely, Mr. Brian Irvine, be appointed as amicus curiae. This order was designed to assist the accused in his defence.

7None of the complainants were able to identify the accused or the other individuals arrested on the early morning of May 6, 2020. As a result, the Crown relies upon s. 21 of the Criminal Code in support of its position that Mr. Chen is guilty as an aider or abetter. The Crown further relies upon s. 21(2) which provides that where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

8It is a precondition to making any finding of guilt against Mr. Chen that the Crown establish that Mr. Chen either aided or abetted other persons to commit the crimes alleged or alternatively, that he formed an intention in common with others to carry out an unlawful purpose and to assist in carrying out the common purpose he knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose. This by necessity means that the Crown has the initial burden of establishing that a home invasion took place on May 6, 2020 and that the crimes alleged in the indictment were committed during the course of that home invasion.

The Evidence Called at Trial

9The Crown called the four complainants at trial. They were Conrad Leung, Sara Wu, Calvin Leung and Christopher Leung.

10The Crown also called Terri Hasell. She is associated with the York Regional Police and attended at the Comfort Inn following the report of the home invasion. She took photographs of Room 242, including the contents of the room.

11Mr. Martin Asiu, who is also with York Regional Police, was also called as a witness. He was dispatched to the Comfort Inn and took part in the arrest of the accused.

12Detective Adam Bosomworth was the officer in charge at the Comfort Inn and described the arrest of the various individuals in the hotel.

13The parties also submitted an agreed statement of facts and a number of videos. One video was a timeline of events occurring at the Comfort Inn. The video was taken by surveillance cameras at the Comfort Inn. Another video showed the four persons arrested at the Comfort Inn when they were booked at the police station later that day.

14The defence elected to call no evidence at the trial.

Has the Crown proved beyond a reasonable doubt that a home invasion occurred in the early morning hours of May 6, 2020 and, if so, have they proved beyond a reasonable doubt that the offences listed in Counts 1 to 4 were committed by the intruders?

15Conrad Leung is 67 years old and works in the real estate business. He owned a home on Rumsey Road in Vaughan. He testified that he was sleeping in a room immediately adjacent to the master bedroom. He was not sleeping in the master bedroom that night because his wife had been watching TV in the master bedroom earlier. He initially heard a noise in the middle of the night. He then heard a scream and was awakened by someone rubbing his face. He initially thought it was a prank, but then realized something terrible was happening. The intruder was wearing a hoodie and a black mask. Nevertheless he could see that the individual was a black person because he could see the skin colour around the intruder’s eyes.

16Sara Wu is the wife of Conrad Leung. She testified that she was asleep when someone broke into the house. She was awoken when someone was pressing a hard object which felt like the handgrip of a gun against her head. Ms. Wu was located in the master bedroom when this occurred. She thought there were two intruders in the room. One was pressing down on her head and one was putting duct tape over her mouth. She then had her hands tied behind her back and while they were tying her up the intruders hit her on her head and used a bag to cover her head.

17Ms. Wu stated that her wallet was taken by the intruders which contained up to $2,000 in cash.

18Calvin Leung is 21 years old and is the son of Conrad Leung and Sara Wu. At around 4:30 a.m. he was in his bed watching videos. He heard shuffling noises. Two men rushed at him and put his head on the bed. They put tape around his head covering his eyes and tied his hands. Subsequently he was able to dial 911. He was afraid to speak to the 911 operator, but hoped they would dispatch the police to their home. One of the intruders came back and directed him into his mother’s room. He saw his mother who was struggling to break free and was also screaming a lot. He was told to sit down in the middle of the room.

19After the intruders left, Calvin Leung noticed that his cellphone was missing as well as some money from his room. He was able to follow his cellphone on a laptop computer and relayed information to the police as to the location of his cellphone which had been stolen by the intruders.

20Christopher Leung is the older brother of Calvin Leung. He testified that in the middle of the night he heard his mother screaming and heard banging in the hallway. He then went out into the hallway. He saw a black man and was subsequently tackled on his side by a Chinese person. A blanket was put over his face and they kicked him. They asked for money. A person with a Chinese accent told him they intended to kill him.

21All of the complainants were credible in giving their evidence. There were no significant inconsistencies in their cross-examinations relating to the allegation that an unexpected home invasion occurred in the early morning hours of May 6, 2020.

22In addition, the evidence of the four complainants was supported by evidence which was found in Room 242 of the Comfort Inn after the police arrived. Police discovered in that room a pry bar. Conrad Leung testified that after the break in he noticed that the basement was colder than usual. He discovered that one of the basement windows had been totally removed. The presence of a pry bar in Room 242 supports a conclusion that this is how the intruders broke into the home.

23In addition, also found in Room 242 at the Comfort Inn as well as at the home itself, were plastic ties. A number of the complainants reported having their hands or legs secured using plastic ties.

24Further, also found in Room 242 was the cellphone owned by Calvin Leung as well as Sara Wu’s purse, together with a quantity of money and other identifying information relating to Ms. Wu.

25The overwhelming weight of evidence supports my conclusion that the Crown has proved beyond a reasonable doubt that in the early morning hours of May 6, 2020, the complainants’ home was broken into by a group of intruders who were committing a home invasion.

26With respect to the individual counts in the indictment, Count 1 alleges that Sara Wu was subject to an aggravated assault during the course of the home invasion. As noted earlier, the Crown in the course of its submissions, advised that they are only seeking to establish that Ms. Wu was subject to an assault causing bodily harm which is a lesser included offence which is covered by s. 267 of the Criminal Code. Under s. 2 of the Criminal Code “bodily harm” is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.

27With respect to this Count, Ms. Wu testified that she thought two people entered her room. One was pressing down on her head and one was putting duct tape on her mouth. The intruders then tied her hands behind her back and used plastic ties to bind her hands. While she was being tied up she was moving and the intruders hit her on the head. The intruders also used a bag to cover her head and dragged her off the bed. As the intruders tied her hands they twisted her around. After the incident her right forearm was found to be very painful and injured. She was taken to the hospital and underwent surgery for a fracture of her right forearm. There is a visible scar on her right forearm from the surgery. She was also in a cast for two to three weeks and was not able to use her right arm during that period of time. She described the pain in her arm as being a “9 out of 10”. Based on the evidence of Ms. Wu on that issue, which was not called into question during the course of her cross-examination and the corroborating evidence of the scar on her right forearm, I have concluded that Ms. Wu was subject to an assault causing bodily harm during the home invasion.

28Count 2 alleges that one of the intruders used a weapon, namely a handgun, to rob Calvin Leung of his cellphone contrary to s. 343(d) of the Criminal Code. Section 343 of the Criminal Code provides that everyone commits robbery who “(d) steals from any person while armed with an offensive weapon or imitation thereof.”

29Calvin Leung testified that after two of the intruders rushed at him, they put his head on his bed and they put tape around his head covering his eyes. They also tied his hands. Eventually the two intruders left his room and he saw his cellphone on the bed. He dialed 911. One of the intruders came back and directed him to his mother’s room by the arm. While in his mother’s room he was asked if he had called the police. At that point one of the intruders held what he thought was a gun to the side of his face. He saw the barrel, which was a circle, like the tip of a pistol.

30In Room 242 police recovered two handguns, which are not alleged to be firearms, but which were subsequently identified as BB guns. Police also recovered Calvin Leung’s cellphone. I have concluded in the circumstances that the Crown has proven beyond a reasonable doubt that during the home invasion, Calvin Leung was robbed of his cellphone and that a weapon, namely a handgun, was used as part of the theft.

31Count 3 alleges that during the home invasion Conrad Leung, Sara Wu, Calvin Leung and Christopher Leung, were all confined without lawfully authority pursuant to s. 279(2) of the Criminal Code.

32The evidence of all four complainants is that during the course of the home invasion they were confined by the intruders. Conrad Leung testified that he had his hands zip-tied behind his back and later zip-tied around his legs. He was left in his bedroom lying face down.

33Sara Wu testified that she was asleep when two people broke into the master bedroom. They zip-tied her hands behind her as well as put duct tape on her mouth and used a bag to cover her head. She was then left on the bed.

34Calvin Leung testified that two men rushed at him and put his head on the bed. They applied duct tape around his head and zip-tied his hands. He was left with his head on the bed. He was subsequently directed to his mother’s room and told to sit in the middle of the floor.

35Christopher Leung went into the hall and saw a 6-foot male of African descent dressed in black. He was then tackled to the ground from the side by a Chinese male. The Chinese male covered his face in a blanket and kicked and punched him in the head and stomach and positioned himself on top of Christopher.

36As noted previously all of the four complainants were credible witnesses. Their evidence on the points noted above were not seriously challenged on cross-examination. There was clearly no lawful authority for the confinement. I find that the Crown has proven beyond a reasonable doubt that the four complainants were unlawfully confined.

37Count 4 alleges that the intruders broke and entered a dwelling house and did therefore commit the indictable offence of robbery contrary to s. 348(1)(b) of the Criminal Code. I have previously determined that the intruders did break and enter into the dwelling house on Rumsey Road. I have also previously concluded that during the course of the home invasion, the complainants were robbed of property they owned in their residence. I have therefore concluded that the Crown has proven beyond a reasonable doubt that the intruders were guilty of breaking and entering a place and committing an indictable offence therein contrary to s. 348(1)(b) of the Criminal Code.

Did the Defendant, Bin Chen, commit the offences identified above, or did he do anything for the purpose of aiding or abetting any person to commit the offence contrary to s. 21(1) of the Criminal Code?

Alternatively, was there an intention in common with other persons to carry out an unlawful purpose and to assist each other therein in carrying out the common purpose, when the accused knew or ought to have known that the commission of the offences would be a probable consequence of carrying out the common purpose contrary to s. 21(2)?

38In order to establish liability under s. 21(2), the Crown is required to establish three factors. The first is that the accused must have participated in the activity for an unlawful purpose. In this case the unlawful purpose was the unlawful break and enter. Second, the Crown must establish that other parties committed the crime. Third, the Crown must prove beyond a reasonable doubt that the offences were a probable consequence of the common purpose.

39The accused argues that he was not involved in the home invasion. He points to the fact that there was no physical evidence of him ever being in the house either by way of fingerprints or his DNA. Further the defence points to the fact that Mr. Chen is never seen carrying any bags or equipment into the hotel and there is nothing to suggest that he was a part of the group who committed the break and enter. The defence acknowledges that even if Mr. Chen is found to have been in the vehicle outside the residence, there was no evidence that he actually entered the residence. His mere presence at the scene of the home invasion is not sufficient to make a finding of guilt.

40The defence also relies on the fact that no one in the house saw someone wearing a baseball cap which Mr. Chen was seen wearing at the Comfort Inn. The accused also argues that there may be legitimate reasons why Mr. Chen did not participate in the robbery. For example they suggest that he may have decided at the last minute not to participate in the robbery.

41I start from the proposition that the evidence of Mr. Chen’s participation in the robbery is wholly circumstantial. In R. v. Villaroman, 2016 SCC 33, the Supreme Court dealt with the issue of circumstantial evidence. The Court notes that the essential component of circumstantial evidence is that in order to convict, a court must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. The Court goes on to note that when assessing circumstantial evidence the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. Other plausible theories must be based on “logic and experience applied to the evidence or the absence of evidence, not on speculation.” The Court notes that the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, “is reasonably capable of supporting an inference other than that the accused is guilty.” In clarifying the law to be drawn between speculation and reasonable inferences the Court notes that a trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable and that alternative inferences must be reasonable, not just possible.

42In the present case, it is clear that three of the perpetrators who committed the home invasion can be readily identified. They are Mr. Asare, Mr. Bishop and Mr. Zhen. In the Agreed Statement of Facts, DNA evidence clearly linked Mr. Bishop and Mr. Asare to the victims of the home invasion. In particular, the Agreed Statement of Facts identifies that Conrad Leung’s DNA and Mr. Asare’s DNA were both found on a glove recovered by the police from the garbage bin in Room 242 at the Comfort Inn hotel. In addition, the Agreed Statement of Facts identifies that Ms. Wu’s DNA was found on a latex glove seized from Mr. Bishop’s pocket by police immediately following Mr. Bishop’s arrest at Room 242 of the Comfort Inn hotel.

43With respect to Mr. Zhen, he is clearly identified in the surveillance video that matches his booking video and is clearly seen in the Comfort Inn timeline video carrying the backpack that contains the handguns, tools of crime, and the stolen iPhone and purse, and which was subsequently found in Room 242 of the Comfort Inn by the police.

44The timeline video was introduced into evidence from the Comfort Inn hotel. The video shows the parking area of the hotel as well as the eastern entrance to the hotel. Evidence at the trial confirmed that Room 242 is located on the second floor on the very eastern side of the hotel. The pictures from the hotel video can then be compared to the booking video of the four accused persons who were later taken to the police station that morning. The characteristics of Mr. Asare which are consistent between the hotel video and the booking video are that he was wearing black shoes. These shoes had a very distinctive white or reflective spot on the top of the shoes. The shoes are also black around the outside of the soles. He is also wearing a hooded jacket and black pants. I am satisfied that video taken from the hotel and the booking videos demonstrate that Mr. Asare entered and left the Comfort Inn east side exit on several occasions that evening. That together with the DNA evidence satisfies me that Mr. Asare was one of the intruders at the Leung residence.

45Mr. Bishop is shown on the hotel video entering the east side exit at 11:04 carrying an orange gym bag. A gym bag matching this description was found in Room 242 of the Comfort Inn following his arrest. Mr. Bishop is also seen in sneakers which are black, but which have white outside the sole. His skin colour is black which is observable at 11:03 of the hotel video as he enters the eastern entrance. Together with the DNA evidence, I am satisfied that Mr. Bishop was also one of the perpetrators of the home invasion.

46Mr. Zhen is of Asian descent. He is seen entering and leaving the eastern exit of the hotel with a backpack which matches a backpack found in Room 242 of the Comfort Inn. He is also observed to be wearing sneakers with white around the outside of the soles and which have black uppers. He is seen to be of a slim build. At 5:41 a.m. he is seen entering the east entrance of the Comfort Inn hotel wearing a sweater which has five distinctive white rings on his left arm. These match exactly to the sweater he was wearing at the time of booking. I am satisfied that it was in fact Mr. Zhen seen coming and going from the Comfort Inn. Given that the backpack carried by him was found in Room 242 to contain the break in tools as well as the property stolen in the home invasion, it seems likely that Mr. Zhen was the leader of the group who committed the home invasion.

47The fourth person seen in the timeline video at the hotel I have concluded is Mr. Chen. He can be seen arriving at the eastern entrance of the hotel at 3:36 a.m. He has got long hair and is wearing a ball cap. He is also wearing a coat which has two distinctive white rings at the collar. This is consistent with the coat he was wearing in the booking video. Another distinct similarity is the outline of his grey shirt which is seen at the bottom of his sweater around his waist. This matches identically to what is seen in the booking video.

48The hotel timeline video is also significant as it shows that Mr. Chen is seen entering the eastern entrance to the hotel and walking up the stairs to the second floor at 3:36 a.m. with Mr. Zhen (the evidence is that the Comfort Inn only had two floors). Mr. Asare and Mr. Bishop have previously entered the hotel and gone up to the second floor as well. There is then a 26-minute and 40-second gap. I infer that Mr. Chen, Mr. Zhen as well as Mr. Asare and Mr. Bishop have all gone to Room 242 of the hotel.

49At 4:03 a.m. Mr. Zhen, followed by Mr. Chen descend the stairs. Mr. Zhen is wearing a wig and carrying the same backpack. The two then walk to a black vehicle parked in the hotel parking lot. At 4:06 a.m. Mr. Bishop, followed by Mr. Asare descend the stairs of the eastern entrance. They also walk out of the hotel and enter the same vehicle. At 4:09, the minivan departs.

50There is then a 1-hour and 27-minute gap. According to the evidence of the complainants, the home invasion takes place somewhere around 4:30 to 5:00 a.m. The first 911 call made by Calvin during the course of the home invasion is received by 911 at 5:16 a.m. A second 911 call occurred at 5:18 a.m. This apparently was from one of the intruders trying to satisfy the 911 operators that there was no need to be concerned about any problem at the house. A third 911 call occurred at 5:26 a.m. This was Christopher Leung calling after the intruders left the home. His evidence is that he called about 90 seconds after the intruders departed. Based on this evidence I have concluded that the intruders left the residence at around 5:24 to 5:26 a.m.

51At 5:36 a.m. the vehicle containing the four individuals pulled into the parking lot of the Comfort Inn from the street and parked. The four individuals spent three minutes inside the van which remained parked. At 5:40 a.m. the four individuals exited the van and proceeded to the east entrance to the hotel.

52Detective Bosomworth estimated in his evidence that it would tale approximately 10 minutes travelling fast to go from the Leung home to the Comfort Inn. If they were driving at the speed limit it would take no more than 14 minutes assuming there were no traffic issues. It is apparent, therefore, that the intruders’ vehicle travelled directly from the Leung home to the Comfort Inn. The evidence of Calvin Leung is that he could track the intruders’ vehicle going along Highway 407. It is apparent that the vehicle would not have had an opportunity to pick up Mr. Chen at a different location. I therefore infer from this evidence that Mr. Chen went to the scene of the home invasion and returned from the scene of the home invasion together with the other three individuals who were in the car. This evidence satisfies me that Mr. Chen was at the scene of the home invasion. There is, a significant issue, however, as to whether Mr. Chen entered the home with the other three individuals. Or whether, as suggested by the defence, he might not have entered the home and remained either in the car or outside in the vicinity of the home.

53I have therefore concluded that Mr. Chen was physically at the scene of the home invasion when it occurred on May 6, 2020 based on the evidence of Calvin Leung that he tracked the vehicle used by those who invaded the home travelling along Highway 407, together with the evidence of Detective Bosomworth that it would take about 10-14 minutes for the vehicle to travel from the scene of the home invasion to the Comfort Inn hotel.

54There is, as noted earlier, a significant issue as to whether Mr. Chen entered the home at the time of the home invasion. The defence position is that there is a reasonable doubt that there were four people in the home at the time of the home invasion. The Crown position is that all four individuals were in the home.

55Three of the complainants testified that they heard Chinese being spoken by the intruders. Conrad Leung testified that he heard one person saying something in Mandarin in his room to someone in the hallway and heard the other person answer back in Mandarin. Conrad Leung testified that while his family spoke Cantonese, he has some familiarity with the Mandarin language. The other language spoken by the intruders was in English.

56Calvin Leung also testified that he heard some “Chinese” being spoken during the home invasion. This suggests there was at least one other person involved in the home invasion who would understand what was being said.

57Finally, Sara Wu testified that she heard someone speaking in Mandarin during this incident.

58I accept the evidence that two of the individuals who were part of the home invasion spoke in Mandarin. Nevertheless, this evidence does not establish beyond a reasonable doubt that Mr. Chen was in the home. That is because there was no evidence before me which confirms whether or not the two black intruders spoke Mandarin. Nevertheless, it seems more likely that the speakers talking in Mandarin were of Asian descent which would suggest that the two people speaking Mandarin were Mr. Zhen and Mr. Chen. Having said that, while it seems likely that Mr. Chen and Mr. Zhen were the ones who spoke Mandarin at the time of the home invasion, it is only a factor to consider and is not determinative in the absence of any evidence as to whether either of the two black intruders spoke Mandarin.

59Another important issue is the number of people who entered the home. The defendant argues that there were only three people who could be identified as participating in the home invasion. Of course, if there were four people who came into the home it would inevitably mean that Mr. Chen must have been the fourth person who entered the home. The complainants were cross-examined closely with respect to their estimate of how many intruders were in the home.

60Sara Wu in her evidence stated that she believed three to four people were in the house. She stated that initially she thought that there were two intruders in her room. One was pressing down on her head and one was putting duct tape over her mouth. She also could hear voices outside of her room including her husband who was heard asking someone not to hurt his family. One of the intruders subsequently left the room. In cross-examination she stated that she believed there were three and maybe four people who left the home.

61Calvin Leung testified that he saw two intruders directly but thought that there were three or four in the house in total. Later he testified that he thought there were four intruders in the home. He first testified that there were two intruders in the master bedroom. One was left in the master bedroom with he and his mother. He believed two intruders were with his dad as he believed that the intruders when clearing the rooms involved two people. This appeared to be an assumption on his part. He also felt there was one person with his brother. Later he stated that he thought there was one person with his mother, one person with his father, one person with his brother and one person who found his cellphone in his room. There is clearly an inconsistency in his evidence as to how he calculated the number of intruders who were in the house. In addition, in cross-examination it was suggested to him that there could not have been more than three persons in the house. He responded that he was not able to determine that. In light of Calvin Leung’s differing versions of his evidence as to how many people were in the house, I do not place any reliance on his evidence suggesting that there was a fourth person who entered the home.

62Conrad Leung was quite firm in his evidence in stating that it sounded like four or five people came into the home. He testified that he encountered two people who came into his room. He could hear one person in his wife’s room and he could hear one person in the hallway. That made for a minimum of four people in the home. Conrad Leung’s evidence is supported by the evidence of Ms. Wu and his son Calvin Leung who testified that initially there were two people in the master bedroom and that subsequently one of them left. It is also supported by the evidence of Christopher Leung who testified that initially he ran into two people, one of whom who tackled him. He testified there was one person holding him down, one person in the hallway and he thought there might be two people in his mother’s bedroom. Conrad Leung was cross-examined about his estimate of four people being in the house. He remained quite firm in stating that he did not think there were only three people in the house. He thought there were four or five people in the residence.

63I found that Conrad Leung was a very credible witness. His explanation as to how he calculated the minimum number of people in the house was quite precise and he did not move off this position during the course of his evidence. It was also consistent with the evidence of the other family members about their experience during the home invasion.

64Christopher Leung also testified that he thought there were four to five people in the home. He stated that when the intruders left the home he heard four to five sets of footsteps. He also thought he heard two people in his mother’s room, another person in the hallway and one person was holding him down. There was also some support for this evidence in that we know from the evidence of Sara Wu and Calvin Leung that there were initially two intruders in the mother’s room and the evidence of Conrad Leung is that he heard another person in the hallway. In cross-examination, it was suggested to Christopher Leung that there may have been only three intruders in the house. He disagreed with this suggestion but when asked if he could be sure about the number of people in the house he responded “no”. In re-examination, he advised that he meant to disagree with the suggestion that there were only three intruders in the house.

65I felt that Christopher Leung was a good witness. He appeared to have a good recollection of the details of the home invasion. Nevertheless, I felt that at the conclusion of his cross-examination he was in fact indicating that he was not sure about the number of intruders in the home.

66In the end I felt that the most reliable estimate about the number of intruders in the home came from Conrad Leung. Having said that, I recognize that when the home invasion occurred the complainants were taken by surprise. This was a rapidly evolving event that took place in the dark. While I felt that Conrad Leung’s evidence was the most reliable evidence about the number of people in the home I am not prepared to accept it as proof beyond a reasonable doubt that there were four intruders in the home. I do, however, find that it is a very substantial piece of evidence which strongly suggests that Mr. Chen entered the home together with the 3 other intruders.

67Although Mr. Chen is seen in the hotel wearing a baseball cap and while none of the complainants identified an intruder was wearing a baseball hat, I do not consider this as being particularly significant. Conrad Leung gave evidence that a bag was put over his head which he later determined was his pillow case. Sara Wu also testified that a plastic bag was put over her head. Calvin Leung testified that tape was put around his head covering his eyes. In these circumstances the opportunity for the complainants to observe the intruders was extremely limited. It is also significant that when the home invasion occurred it was dark and the ability of the family to see the intruders was further compromised.

68Similarly, I do not place any weight on the fact that no DNA or fingerprints were found which linked Mr. Chen to being inside the home. We know that gloves were found in Room 242 of the hotel from Mr. Bishop and Mr. Asare. DNA on these gloves linked both of those individuals to the home invasion. No additional gloves were found but it is reasonable to believe that all of the intruders wore latex gloves and in this scenario the absence of a DNA link with Mr. Chen and Mr. Zhen is explained by the failure of the police to find the gloves worn by Mr. Chen and Mr. Zhen, assuming that Mr. Chen was one of the intruders.

69I do find it significant that prior to the home invasion Mr. Chen was upstairs at the Comfort Inn. I infer that in the 26-minutes and 40-seconds that he was on the second floor of the hotel he was in Room 242 together with Mr. Asare, Mr. Bishop and Mr. Zhen and that they were meeting to discuss the proposed home invasion. I conclude on this basis that Mr. Chen took part in the planning of the home invasion. I accept the defence position that Mr. Chen’s mere presence at the scene does not establish his guilt or the fact that he was one of the intruders during the home invasion. Nevertheless, it is a factor (and I consider it to be a significant one) that following the planning meeting for the home invasion, Mr. Chen entered a vehicle with the three other individuals who were involved in the home invasion and that he was at the scene of the home invasion at the time it occurred. It is also significant that arriving back at the Comfort Inn, Mr. Chen was arrested in Room 242, together with two other individuals who can definitely be linked to the home invasion.

70Taking all of these circumstances and evidence into account, I have concluded that the only rational inference and the one I draw is that Mr. Chen was actively engaged in the home invasion and entered the home as one of four intruders. I reject the suggestion that he was an innocent bystander who was simply on the scene at the time the home invasion occurred. The suggestion that he might simply have changed his mind at the last minute and refused to go into the house is in my view speculation, especially given that after the four individuals returned to the hotel Mr. Chen accompanied them back into Room 242. The Crown has therefore proved beyond a reasonable doubt that Mr. Chen was one of the intruders who broke into the Leung home. At all times Mr. Chen is seen on the video to be free of any interference from the other intruders. I have therefore concluded that his actions were intentional and voluntary.

71I have concluded that the common purpose test under s. 21(2) has been satisfied in this case by the Crown. I have concluded that Mr. Chen formed an intention in common with the three other intruders to carryout an unlawful purpose, namely to conduct an unlawful break in and that he knew or ought to have known that the commission of the offences he is charged with would be a probable consequence of carrying out the common purpose. With respect to the assault on Ms. Wu, the evidence indicates that two pistols were seized from Room 242 of the hotel. There is also evidence that two knives were found as well as plastic zip ties in the hotel room. It is apparent that in the planning of the home invasion it was anticipated that people would be in the home and would have to be subdued with the probable result being an assault which carried a probable risk of bodily injury. The purpose of the home invasion was to steal property and cash from the home. Thus, the theft of property (in this case a cellphone) and the use of a handgun to rob Calvin Leung must have been directly contemplated. It must also have been directly contemplated that the individuals in the home would have to be confined and that the home would have to be subject to a break and enter in order to commit the indictable offence of robbery.

Conclusion

72For the above reasons, I have concluded that Mr. Chen is guilty on all four counts of the indictment.