HKSAR v. WONG PING WAN

DCCC 334/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 334 OF 2012

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Reasons for Verdict

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1. The defendant faces one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He has denied the charge.

2. There were 6 Prosecution witnesses.  At the conclusion of the Prosecution case, a submission of no case to answer was made on behalf of the defendant.  After hearing submissions from defence and prosecution counsel, I found that there was a case to answer.  Having had his rights explained to him by his counsel, the defendant elected not to give evidence and called no evidence.  That was his right and I inferred nothing against him for exercising that right.  Mr Parry, in accordance with accepted practice, made no submissions.  After hearing closing submissions from Mr Ho, I adjourned the matter until today for verdict.

3. At the outset, admitted facts under section 65C of the Criminal Procedure Ordinance, Cap 221, were produced and marked Exhibit P7.  These disclosed that:

(a) At around 12.00 hours on 11 March 2012, the defendant was arrested and cautioned by PW5 PC13452 at the ‘Chu Kong Garage’ at Ground Floor, No 4, Fu Wah Industrial Building, No 17 Hi Yip Street, Tung Tau Industrial Estate, Yuen Long, hereinafter referred to as ‘the garage’. Under caution, the defendant had nothing to say.

(b) DPC 7868 drew a sketch of the layout of the garage at around 13.45 hours on 11 March 2012. This was produced by agreement and marked as Exhibit P1 and its certified English translation Exhibit P1A.

(c) DPC 52037 took 13 photographs of the garage and its surrounding area at 13.45 hours on 11 March 2012. The said photos were produced by agreement and marked as Exhibit P2 (1) to (13). The certificate in respect of the photographs was produced by agreement and marked Exhibit P3.

(d) The defendant was interviewed on video under caution by PW6 DPC 5879 on 11 March 2012 between 16.50 and 17.04 hours at Room No 1, Yuen Long Police Station. This was a voluntary interview. The master disc of the video interview was produced by agreement as Exhibit P4, the transcript Exhibit P5 and its certified English translation Exhibit P6.

4. There was little dispute on the facts.  The defendant’s identity was also not in issue.

5. PW1, Mr Cheung Yuen-kwong, was a vehicle painting worker employed by the Chu Kong Garage.  He has been working for the garage since 1996.  The garage repaired mainly PLBs, although it would on occasion repair other vehicles for regular customers.  On the morning of 11 March 2012, he returned to the garage at about 9.30 am and opened the rear door with the key he had – the door was securely locked.  He then entered the shop and opened the roller shutters of the front entrance of the garage from inside the garage.  The locks of the shutters were intact.  He then went to the staff changing room to change his clothes before he started work spraying the PLB parked inside the garage as depicted in the photographs of the garage.  When he was working at the nearside rear of the PLB, he heard a noise coming from the changing room – the sound was that of something being bumped against a metallic object.  The lockers in the changing room where the staff kept their belongings whilst they worked were made of metal.  These lockers were rarely locked.  He thought a colleague had returned to work and leaned his head out to look and saw a male, a stranger to him, whom he identified to be the defendant, coming out from the changing room.  He also saw that a key that was inserted into the lock of one of the lockers was swaying.  The key was produced and marked as Exhibit P8.  It can be seen depicted on photos 10, 11 and 12 of Exhibit P2, inserted into the lock of the third locker up counting from the bottom, on the row of lockers on the right of each of these photos.  What PW1 saw swinging was the curled keychain attached to the key.  The door of that locker was almost closed.  He immediately stopped the defendant from leaving and asked the defendant what he was doing there and why he had gone into a private place.  The defendant replied that he went to ask for directions, that he wanted to go to the Hei Yip Canteen.  PW1 said there was such a canteen, further down Hei Yip Street.  He had never heard of the Wah Fai Restaurant.  He felt suspicious of the defendant, and called a colleague, Tang Wing Kwan, to ask what he should do, and was told to call the police, which he did.  The defendant remained there until the police arrived.  After the arrival of the police, PW1 had also called other colleagues, including PW2 See Wing Hung, to see if they had suffered any loss from their lockers.  Of the 3 colleagues he called, two came back.  PW2 was the only one who had anything missing from his locker.  He had noticed a PLB parked outside the front of the garage prior to the police arrival – he knew the driver was called Ah Tin and he had seen Ah Tin outside the garage.

6. PW1 was cross-examined in respect of the time he said he arrived at the garage – although in his oral testimony he had said he had arrived at about 9.30 am, his witness statement recorded that he had arrived at about 10 am.  When asked about this, he said he had seen the defendant at 10 am but had started work at 9.30 am.  He was referred to another paragraph in his witness statement where he said he heard noise coming from the changing room at about 10.30 am.  He said he may have been mistaken about the times, and the time on the witness statement of 10.30 am when he saw the defendant should be correct.  He had also noticed Ah Tin outside the garage about 10 to 15 minutes after he started work.

7. PW2, See Wing Hung, also worked in the garage and was a colleague of PW1.  He was off duty on 11 March 2012, and received a telephone call from a colleague named Fan Siu Tong to return to the garage to check if anything was missing from his locker.  He returned shortly after 11 am and checked his locker, depicted in photos 10, 11 and 12 as the second locker counting from the bottom up, on the left row of lockers, and it had a towel draped over the door.  He found about HK$150 missing from his locker – this was money he had received the previous week for meal allowances.  He had last seen this money in his locker the day before when he went off duty, at about 7 pm. Other colleagues were still working at the garage when he left.  His locker was also not locked – he rarely locked his locker.  The money was in banknotes – one $100 banknote and $20 banknotes.  He was unsure if there was $10 banknote or coins.  He said the door of the locker was closed, but with a towel draped over the door of his locker, I do not see how the locker door could have been closed.  Under cross-examination, he agreed that the changing room did not have a door.  He and other colleagues all had keys to gain entry into the garage.

8. PW3, Wong Wai Tin, was a PLB driver.  He said he was also known as Ah Tin.  That morning he started work at about 6.45 am.  He found that there was something wrong with the brakes of his PLB and drove it to the garage for repair.  He repaired his vehicle usually at this garage.  He arrived at the garage at about 9.45 am and parked his PLB at the front of the garage.  He saw that the shutters at the front were opened, although he could not see anyone working inside.  He stood outside the garage on the pavement waiting to see the workers in the garage.  While he was waiting, someone walked past him, although he did not notice where he went.  That man walked from the right of photo 1 past the private car depicted parked on photo 1 towards him.  He was standing on the pavement near the red oil drum depicted on photo 1.  Although they did not speak, they had eye contact.  PW3 continued to wait on the pavement, and a while later, he heard noise from inside the garage, and saw PW1 inside the garage, on the left hand side of the PLB depicted on photo 1, near the changing room entrance.  PW1 was having an argument with the man who had earlier walked past him, about 10 to 15 minutes earlier, and PW1 was saying that he had seen the key swinging and asking the male why he had gone into the room.  They spoke loudly.  This argument was at about 10 am.  He heard someone say to call the police, and he was still there when the police vehicle arrived, about 10 to 15 minutes later.  He left soon after the police vehicle arrived. He was not asked to identify the male who had walked past him as he said he did not think he could recognise him now, but he was sure he was the one who was having the argument with PW1.

9. PW4, Lee Wai Loi, was the proprietor of the garage.  He confirmed that the changing room for his workers was a private place and spare parts used in the garage were also stored in the changing room. The general public was not allowed into the changing room, but there was no door to the changing room, nor was there any notice informing that the changing room was a private place and that there was no entry into it.  He would verbally tell regular customers they should not go into the garage as it was a work place and dangerous.

10. PW5, PC13452, was instructed to go to the garage at 10.46 am and arrived at 10.57 am.  He spoke to PW1 at the scene.  He also searched the defendant between 11.56 and 11.58 am and found banknotes in the defendant’s wallet totalling HK$170, Exhibit P9, and some coins totalling HK$23.50 in the messenger bag carried by the defendant.  He declared arrest on the defendant at about 12 noon.  The defendant had nothing to say under caution.

11. PW6, DPC 5879, attended the garage at 12.15 pm. He had asked for fingerprints and DNA samples to be taken at the scene.  None could be taken – fingerprints could not be lifted because of the greasy and dirty conditions in the garage.  He was also the police officer who interviewed the defendant under caution on video, and he had served the notice to persons in custody on the defendant, Exhibit P10.

12. The video interview under caution of the defendant, Exhibit P4, was produced by agreement, and it was admitted to have been voluntarily by the defendant.  This was an exculpatory statement.  The defendant said he was on his way to find his friend Ah San, also known as Tai San, for tea at a restaurant in an industrial building, although he could not remember and was not clear about the name of the building – the restaurant was named the Wah Fai Restaurant.  He did not know the full name of Ah San, nor did he have any means to contact him – he had hoped to come upon him in the restaurant as Ah San would go to the restaurant every Sunday.  He was asked during the interview why he had not asked directions from the PLB driver outside the garage - he said he was not sure if he would know the way and thought to ask a worker in the garage.  He then said that the driver was far from him and that he did not walk past the driver.  He also said the money found on him was his own money.

13. I have carefully considered all the evidence adduced before me as well as the submissions of counsel.  I have borne in mind at all times that the burden of proof remains throughout upon the prosecution to prove guilt beyond all reasonable doubt.

14. The facts at issue rely on the credibility of witnesses and the weight to be attached to evidence.  I found the prosecution witnesses to be honest and credible witnesses, who each gave their evidence in a straight forward manner, without hesitation and without exaggeration.  Their account of events was inherently credible, and I accepted their account of events, in particular the account of PW1 as to how he came across the defendant coming out of the changing room.  There were some discrepancies in respect of the times he gave in his witness statement and his testimony in court.  PW1 accepted that the time he gave in his witness statement was the correct time, ie that he came across the defendant at about 10.30 am.  His testimony in respect of time differed from that of PW3.  PW3 said he arrived at the garage at about 9.45 am and heard the argument between PW1 and the male who had walked past him at about 10 am.  PW5, the first police officer to arrive at the scene, said he was instructed to go to the scene at 10.46 am.  In my view, these were minor discrepancies and did not cause me to doubt the veracity of either PW1 or PW3.  It was not in issue that the defendant was intercepted by PW1 inside the garage coming out from the staff changing room in the garage, which was a private place.

15. Clearly, the defendant did not have permission to go into the changing room, but again, there was no notice that the changing room was off limits to the general public.  The garage at the time was open for business.  PW3 was outside the garage, and he also did not see any workers in the garage.  PW1 said he was working at the rear of the parked PLB and would therefore not have been visible to anyone at the front of the garage.

16. When asked by PW1 as to why he was there, the defendant said he was asking for directions to the Hi Yip Canteen, whilst in his video interview under caution, he said the name of another restaurant.  He also gave inconsistent answers as to why he did not ask the PLB driver he had seen outside the garage for directions, rather than going into the garage when he could not seen anyone inside the garage.  He gave explanations for his presence, but of course these explanations have not been tested on oath, and in my view little weight can be attached to them.

17. PW2 testified that money was missing from his unlocked locker.  Although HK$170 in banknotes were found in the defendant’s wallet when he was searched, and the denominations of the banknotes matched what PW2 said was in his locker, there were no distinguishing features to identify the money found in the defendant’s wallet to be the money stolen from PW2’s unlocked locker.  PW2 had last seen the money in his locker when he went off duty the day before, and other workers were still working in the garage.  Other workers also had keys to the garage.  The money was kept in an unlocked locker, and although PW2 said he had closed the door of his locker, I do not find this is possible in light of the towel draped over the door of the locker.  PW2 said the money was in a bowl and not hidden from view.  There would have been opportunity for a person other than the defendant to steal the money.  Other workers were still there when PW2 left the night before.  Also, after PW1 opened the garage that morning, it was more than half an hour later that he heard noise coming from the changing room – someone could have come in before the defendant and stolen the money. PW1 testified to seeing the swinging keychain of a key inserted in the lock of another locker, not PW2’s locker, and it was in another row of lockers.

18. The burden of proof remains throughout upon the prosecution to prove guilt beyond all reasonable doubt – the defendant needs to prove nothing.

19. The defendant was seen coming out of the changing room almost immediately after PW1 heard a metallic banging noise from the changing room.  I am asked to infer that by his unauthorized entry into the changing room, and the swinging of the keychain of a key inserted into the lock of another locker in the row of lockers that the defendant stole the cash from the locker of PW2. As I have said, from the time PW2 last saw his money in his locker until he found it missing, it was a considerable period of time, and there were people other than the defendant who could have stolen the money.  I cannot draw any inference from the money that was found in his wallet that this money was from PW2’s locker.  There is no evidence of what the defendant did in the changing room or even of how long he was there.  No fingerprints could be lifted and there was no DNA evidence available.  Even if the metallic banging sound  that PW1 heard and the swinging of the keychain that he saw were caused by the defendant, can that be proof beyond reasonable doubt that the defendant stole the money in PW2’s locker?

20. I find the circumstances of the defendant’s presence in the garage extremely suspicious.  But I cannot be certain to the requisite standard that he stole the cash in question.  Nor can I be certain to the requisite standard that he was there to steal and had not entered to seek directions as he said and entered the changing room to look for someone to ask directions from.

21. I do have doubt, and the benefit of that doubt must be to the defendant – he is acquitted of the charge.