HKSAR v. CHEUNG KING SAN

DCCC1236/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1236 OF 2011

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Reasons for Verdict

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Background

1.  The Defendant pleaded not guilty to three charges of “burglary”, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2.  The same premises, that is, a building under construction named “ONE WANCHAI” on Queen’s Road East, Wan Chai, Hong Kong (“the Site”), were involved in all these charges. The items said to have been stolen on the three occasions were copper pipes.  

3.  At trial, the prosecution relied on the observations made by the police on 5 October 2011 which resulted in the arrest of the Defendant on that day. They also relied on the answers given by the Defendant during the initial enquiries and his replies under caution. When the Defendant was taken back to the police station, he was interviewed by 2 police officers (PW3 and PW5). One post-record and three records of interview were obtained.

4.  The Defendant challenged the admissibility of his verbal admissions at scene, saying that he did not make those admissions and, if the court finds that he did, then those were not voluntarily given. He also challenged the admissibility of the written records.

5.  The alternative procedure was adopted. The Defendant elected to give evidence on the special issue. After I ruled that the verbal admissions and the written records were admissible and when the prosecution formally closed the case, the defence did not make any half-time submissions on the general issue.

6.  Upon my ruling that there was a case to answer in respect of all three charges, the Defendant elected not to testify on the general issue. That is certainly his right and nothing adverse is to be drawn against him.

The Prosecution Case

(1) The 1^st and 2^nd Incidents

7.  PW1 was the engineer responsible for managing the materials on the Site. Around 26 September 2011, PW1 discovered that a batch of about 30 copper pipes, valued at about HK$7,000, which was placed at the L/G Floor went missing from the Site. The pipes were 3 metres in length. At the time, he saw some cut-up pipes being left on the ground. The police were called.

8.  PW1 said that although there was no lock or gate on the L/G Floor, there were gates and locks at the entrances to the Site. A guard was also posted at the gate during night time.

9.  Several days after the pipes were found missing, it was discovered by PW1 that about 10 copper pipes, valued at about HK$2,500, were missing from the L/G Floor again. Similarly, some cut-up copper pipes were found left on the ground. Another report was made to the police.

(2) The 3^rd Incident

(a) The Police Observations

10.  PW2 was the police officer who manned an observation post at the rooftop of Queen’s Road East in the early hours of 5 October 2011.

11.  At about 3:43 a.m., PW2 saw a man wearing a black T-shirt and a pair of dark trousers crossing over to the pavement of the Site from the middle of the road. When the man almost got to the entrance of the Site, he knelt down. PW2 then lost sight of him. PW2 therefore informed his colleagues about what happened through the communication device.

12.  At about 4:20 a.m., PW2 saw a man in similar outfits appearing on the podium of the Site. He believed it was the same person he saw earlier. The man walked for some time and then disappeared.

13.  At about 5:20 a.m., PW2 saw a man carrying something on his shoulder and walking from left to right on the podium.

14.  At 6:12 a.m., PW2 heard from the communication device that his team members had intercepted a man at the entrance of the Site. PW2 went to the entrance and, after checking the man’s outfits, told his colleagues that he believed this man was the one he saw on those three previous occasions.

15.  Afterwards, PW2 was instructed to conduct a check. As a result, he found pipes similar to those stolen by the Defendant inside one of the rooms in a structure on the 3/F podium.

16.  PW2 confirmed that there were street lamps on that day and the podium also had fluorescent tubes.

(b) The Interception of the Defendant

17.  PW3, together with PW4, were tasked to conduct car patrol in the vicinity of Queen’s Road East and Wanchai Road starting from about 10:30 p.m. on 4 October 2011. Their evidence was similar.

18.  At about 3:44 a.m. on 5 October 2011, while they were on board the patrol car and were on Wanchai Road, PW3 heard from PW2 through the communication device that PW2 had seen a suspect walking in the direction of Ruttonjee on east-bound Queen’s Road East. When the suspect was near the Site, he knelt and disappeared. As a result, PW3 and PW4 drove along Queen’s Road East, but they could not see the suspect.

19.  Later, they drove to Kennedy Street where they alighted from the car. They then went into the rear compartment of the car and kept observing the gate of the Site from inside the car. 

20.  At 4:20 a.m., PW3 received another message from PW2, that is, the suspect was seen appearing on the podium and walking around. PW2 also mentioned that when the suspect was doing so, the clattering of some metal was heard. The suspect later disappeared.

21.  At 5:20 a.m., PW2 told them that the suspect was again seen appearing on the 3/F podium and he seemed to be moving something. Then, the suspect disappeared.

22.  At 6:12 a.m., PW3 and PW4 saw a person sticking out his head from under the gate and looking at the pavement. Then, the person crept out. Afterwards, the person squatted and pulled out a green canvas bag from under the gate. He then put it on his right shoulder. The person was in dark outfits.

23.  On seeing that, both PW3 and PW4 alighted from the car and went over to the gate which was about 20 meters away. They intercepted the Defendant there. After revealing his police identity, PW3 told the Defendant to put down the bag on the ground. PW3 took a look at the bag and found that it had some copper pipes exposed.

24.  After confirming the Defendant’s identity, PW3 asked the Defendant why he crept out from the Site and what the Defendant was carrying with him. In reply, the Defendant said that the copper pipes were stolen inside a concrete room near Ruttonjee on the 2/F of the Site. PW3 therefore arrested the Defendant for “theft from site” and cautioned him. Under caution, the Defendant said, “The copper pipes were stolen by me. I have only stolen twice. The rest had nothing to do with me. Don’t frame me up.”

25.  Afterwards, the Defendant was brought to the car by PW3 and PW4. They waited there for a “sweeping” to be conducted in the vicinity of the Site. Then, they drove the Defendant back to Wanchai police station.

(c) The Defendant’s Admissions

26.  After reporting the matter to the Duty Officer, PW3 took the Defendant to an interview room in which he explained and served the “Notice to Persons in Police Custody” (“the Notice”) to the Defendant.

27.  Then, PW3 took a post-record (exhibit P3) from the Defendant. When PW3 had finished the post-record, he gave a breakfast to the Defendant. When the Defendant had finished eating, PW3 took the 1^st record of interview (exhibit P5) from the Defendant.

28.  In the course of the interview, as the Defendant had admitted to having committed another theft on 1 October 2011, PW3 arrested him for that offence. Under caution, the Defendant repeated the admission. When the interview was finished, the Defendant was handed over to the Report Room for guarding. 

29.  PW5 was the officer from the divisional investigation team who was responsible for taking the Defendant’s 2^nd and 3^rd records of interviews (P10 and P11).

30.  PW5 first met the Defendant in Wanchai police station and he signed out the Defendant from the Duty Officer at about 10:30 a.m. After issuing the Notice to the Defendant, he started the interview. PW5 said that he was tasked to make enquiries with the Defendant in respect of two burglaries which happened on 1 and 5 October 2011. PW5 did not know if the Defendant had already made some admissions.

The Defence Case – The Special Issue

31.  The Defendant elected to give evidence after I had ruled that there was a case to answer on the special issue. He called no other witnesses. The following is the Defendant’s account of events on the special issue.

32.  The Defendant said that after finishing work as a causal cleaning worker in the early hours of 5 October 2011, he went to eat in a restaurant at the Blue House. When he finished and was near McGregor Street, a van drove towards him and stopped. Then, 4-5 police officers alighted from the van. One of them told him that he was suspected of being involved in a burglary case which happened on Queen’s Road East. He was arrested and was told that he would be taken to Wanchai police station for investigation. However, he was then driven to the Site.

33.  When the van stopped at the gate of the Site, a caretaker opened the gate. PW3 went in and asked if the caretaker had seen the Defendant. After taking a look at the Defendant, the caretaker answered in the negative. PW5 later took out a black bag of stuff from the Site. He said to the Defendant words to the effect that the bag of stuff was his and that it was the Defendant who had taken it out from the Site. In reply, the Defendant said that he was intercepted by the police at McGregor Street and he did not enter the Site. The Defendant also said that he was empty-handed at that time.

34.  After they had arrived at the police station, the Defendant was taken to sit in a room. PW3 told him that he would come back to take a statement from him. When the statement was completed, the Defendant would need to sign for him. If the Defendant did not follow his instructions, he would beat the Defendant until he signed. It was under such circumstances that the Defendant signed on P3 and copied the declarations.

35.  The Defendant told the court that he knew what was written on the record as PW3 had let him read it once himself. He also said that he had told PW3 that the contents were added by PW3. However, the Defendant claimed that as the statement was written in front of a police officer, there was nothing that he could do. Therefore, when PW3 asked him if he had anything to alter, he answered in the negative.

36.  Initially, the Defendant said that PW3 “seemed to have” covered the upper part of the Notice (P2) with a piece of paper when it was given to him for signature. When pressed, the Defendant then said that PW3 actually did that. Similarly, the Defendant said that PW5 had used a book to cover the upper part of the Notice (P9) when PW5 asked him to sign on the bottom part.

37.  At one stage, the Defendant said that, after P3 and P5 had been taken, it was PW5 who brought him to an upper floor room to take the 2^nd and the 3^rd records of interview (P10 & P11). At another stage, the Defendant said that this officer was not PW5, but was an “internal CID officer”. During that interview, both PW5 and the “internal CID officer” were present.

38.  Moreover, the “internal CID officer” had told him that if he finished it quickly, he would be able to go out to spend the Chinese New Year.

39.  When the two records of interview (P10 & P11) were taken, the Defendant said he had told the officer that the contents were incorrect and he had said he disagreed. However, as PW3 had told him earlier that if he did not sign, he would be beaten up, so he felt that there was nothing that he could do. He therefore signed on the documents. 

40.  Concerning the questions and answers on P11, the Defendant first agreed that those questions were asked during the interview. Then, he changed to say that apart from Question 1, he disagreed to the rest of the contents and they were added.

41.  The Defendant also told the court that he had demanded to see PW5’s supervisor as PW5 had added contents on the records. However, PW5 did not let him see the Duty Officer.

Evaluations & Findings – The Special Issue

(1) The Defendant’s Evidence

42.  The Defendant bears no burden of proof. The burden of proving the voluntariness of the verbal admissions and the written records rests entirely on the prosecution. Unless the prosecution makes me sure that those were voluntarily given by the Defendant, such could not be admitted into evidence.

43.  Moreover, although the Defendant had mentioned about being previously arrested by the police in relation to another case of construction site burglary, no adverse inference whatsoever would be taken against him. The Defendant referred to such as he was telling the court that the police were angry with him because he got released from the police station on the last occasion, so the police framed him up this time.

44.  Having carefully considered the Defendant’s evidence, I completely reject his account of events. The following is my assessment.

45.  Firstly, the Defendant contradicted himself a lot and he provided different answers at different times. For instance, the Defendant gave different versions as to who took P10 and P11 from him. Although he mentioned “an internal CID officer” when he gave evidence, there was nothing about that in the Grounds of Objection and it had never been suggested to PW5 that he was not the one taking P10 and P11.

46.  Further, the Defendant mentioned, under cross-examination, that he had told PW5 that if PW5 was able to say that the bag of stuff belonged to him when it was untrue, then Hong Kong could no longer be regarded as a place of law. When asked why he did not mention it earlier, the Defendant sought to explain that he had forgotten to do so in his evidence-in-chief. Again, such had never been put to PW5.

47.  As regards the Notice (P2), the Defendant said at one stage that he was asked to sign at the beginning of the interview. He said at another stage that he signed it at the end of the interview.

48.  While I notice that the Defendant stammers a bit, I am sure that the above inconsistencies had nothing to do with the Defendant’s inability to speak smoothly. Nor were those inconsistencies caused by mere confusions. If the events had happened in the manner referred to by the Defendant, he would have given a consistent account of what those events were. He would not have provided different and contradictory accounts when questioned on the same issue. Having taken all relevant matters into consideration and having carefully assessed the Defendant’s evidence, I have no doubt that what he alleged to have happened is entirely untrue. That is why he gave such contradictory evidence.

49.  Next, I find the Defendant’s claim that he had been taken to the Site to be wholly improbable. It defies common sense. If the police had framed up the Defendant as alleged, they could simply take the Defendant back to the station and make him sign on whatever confessional statements the police prepared.

50.  There was no reason why the police would run the risk of getting the others involved, for instance, by asking the caretaker of the Site if he had seen the Defendant. I find it even more surprising that PW5 would have, in those circumstances, gone into the site and taken out a bag of stuff, and then told the Defendant, in front of the caretaker, that the bag belonged to him. 

51.  If the Defendant’s account of events were true, it would mean that the caretaker had allowed the police to freely enter the Site and to take away properties from the Site. It would also mean that the police had framed the Defendant up in front of the caretaker. Such is entirely unreasonable and is not the truth.

52.  Further, if the police had fabricated the admissions on the records, I see no reason for them to then read over the records to the Defendant. That is wholly unnecessary.

53.  I also reject the Defendant’s evidence concerning the Notice (P2 and P9). If the police had been so oppressive as described by the Defendant, there was simply no need for PW3 and PW5 to have covered the upper part of the Notice. In other words, even if the Defendant wanted to make any request after reading the Notice, the officers could easily say “no” to him.

54.  Moreover, while the Defendant told the court that as he was in fear of being beaten up, he therefore signed on the documents, he also said that he had repeatedly told the officers that the records were incorrect records and there were many things which had been added. The Defendant even said that he had told PW5 that he would complain to his supervisor.

55.  Now, putting aside that the Defendant never mentioned the complaint to the supervisor in his evidence-in-chief, I do not see how, if the Defendant were in fear, he would suddenly be bold enough to have repeatedly told the officers that he did not make any of the admissions and he disagreed to those. I also do not see how, in such circumstances, the Defendant would dare to challenge the officer by saying that he would make a complaint to his supervisor. The only conclusion I reach is that the Defendant was fabricating all these. The events did not happen in the manner he described.

56.  In short, having considered the evidence and counsel’s submissions, I entirely reject the Defendant’s evidence.

(2) The Prosecution Evidence

57.  Needless to say, the burden is still on the prosecution to prove the question of voluntariness beyond a reasonable doubt. In this respect, I find all the police officers to be honest and credible. They gave evidence in a straight-forward manner and they were unshaken under cross-examination.

58.  During submissions, Mr. Chiu for the Defendant made a number of criticisms concerning the police officers’ evidence. These criticisms, whether taken individually or collectively, have not caused me to doubt the truthfulness of the officers’ evidence.

59.  For instance, Mr. Chiu emphasized that it was not possible for PW3 to be able to give the case reference number of the earlier burglary in the Defendant’s 1^st record of interview without referring to his notes, or without any assistance from his colleagues. Mr. Chiu suggested that other police officers must have entered the room during the interview as testified by the Defendant.

60.  I reject this submission. I find PW3 a most honest and reliable witness. When cross-examined, he tried to recall the particulars and answered the questions. He never dodged any questions. According to PW3, he was briefed about the earlier burglaries by his superiors. He had jotted down the case numbers on those occasions.

61.  Moreover, PW3 said that when there was no demonstration or protest, his main task was anti-crime work, so before starting work that night, he had read all the crime information and he could therefore remember the case number. I am sure that PW3 was telling the court the truth. I do not find it impossible for a police officer to be able to remember a case number if he had been briefed about it and had read the information before.

62.  Secondly, Mr. Chiu criticized PW3 and PW5 for having incorrectly written down the ending time of the interview on the 1^st page of the Defendant’s post-record, and the Defendant’s records of interview. Both officers explained that they checked their watches and wrote down the time when they had finished the questioning and when the Defendant confirmed that he had nothing to alter, correct or add. They considered the interview to have finished by that time. They therefore treated that as the interview’s ending time and recorded the same on the 1^st page.

63.  Clearly, the time recorded was not the correct ending time of the interview for after that, the officers had read over the record to the Defendant and the Defendant had copied the declarations. However, I find no substance in Mr. Chiu’s complaint. I am sure that this was only a practice which the officers adopted. I do not find it to have affected the veracity of the officers’ evidence, or the accuracy of the other contents of the records.

64.  Concerning the Notice, I accept PW3 and PW5’s evidence that the Notice had been read over to the Defendant and had been read by the Defendant before the Defendant was asked to sign on those. As mentioned above, if the officers were indeed minded to deprive the Defendant of the chance of reading the Notice, they could simply direct him to sign on the documents. According to the Defendant, the officers had framed him up and had lied in all respects relating to his arrest and the records. If so, I see no reason for the officers to have to cover the upper part of the Notice in order not to let the Defendant see its contents.

65.  Mr. Chiu further submitted that PW2, PW3 and PW4’s evidence concerning what PW2 observed at that time was inconsistent, thus casting a doubt on the veracity of their evidence. I do not agree. Those are either not inconsistencies or they are immaterial and minor.

66.  All the officers gave consistent evidence as to what happened on the day of their operation. Their evidence was clear. PW3 and PW4 corroborated each other on what they learnt from PW2 over the communication device; what their observations were; and what happened after the Defendant was intercepted.

67.  The inconsistencies mentioned by Mr. Chiu were that, for instance, PW2 told the court that he had seen the Defendant crossing over to the entrance of the Site from the middle of the road. However, PW3 said what he heard from PW2 was that the man had walked in the direction of Ruttonjee on east-bound Queen’s Road East, then knelt and disappeared. PW4’s version was that PW2 had mentioned a man passing by the entrance of the Site and then disappeared.

68.  Since PW2 was the officer who made the actual observations whereas both PW3 and PW4 received the message from PW2 through the communication device, I do not find it surprising that there was a minor discrepancy. In fact, it might not be a discrepancy as such for although PW2 said that he had seen the man walking from the middle of the road to the entrance, he did not say that he had informed his colleagues of such details through the communication device. The important part was that the man had disappeared near the entrance and he asked his colleagues to check. All three officers were consistent on this part.

69.  Mr. Chiu also suggested that as PW3 said that PW2 had mentioned about the man appearing on the podium with some clattering sound whereas PW4’s version was that PW2 had mentioned the sound of something being moved, that constituted another inconsistency. I do not agree. These were very minor particulars. Even if these were discrepancies, such have not caused me to doubt the truthfulness of the officers’ evidence.

70.  Moreover, if the events had been made up by the officers, it would have been easy for them to just stick to one version and to have described a single episode which resulted in the arrest of the Defendant. In other words, I do not see any need for them to fabricate detailed events, that is, what happened at what time during a period of a number of hours. As mentioned above, I find all of them honest and reliable witnesses and I accept their evidence.

71.  Mr. Chiu further submitted that if PW5 had not read the Defendant’s previous records of interview, he would not have begun the interview in that manner. I disagree. Firstly, if PW5 had read the Defendant’s records, I do not see any need for him to lie about this. Being the investigation officer, there could not have been any objection for him to read the Defendant’s records of interview before he started the interview. Therefore, if PW5 had indeed read the records, he could simply tell the court so. Secondly, PW5 had already told the court that he was particularly tasked to make enquiries into the two burglaries which happened on 1 and 5 October 2011. In the circumstances, it was natural for him to have asked in the first question how the Defendant entered the Site. There is nothing suspicious or unreasonable about this.

72.  Mr. Chiu also invited the court’s attention to the time gaps which were said to be unusual. I do not agree. We are not talking about any unreasonably large gaps here. I am sure that as explained by PW5, the time was taken up by the photocopying of the documents and by the officer serving those documents on the Defendant and asking him to sign to acknowledge receipt of the same. I find nothing sinister about these timings.     

(3) My Ruling

73.  All in all, the prosecution has proved beyond a reasonable doubt that the Defendant had made the verbal admissions and the written records voluntarily.

74.  I have also considered if it is necessary for me to exercise my discretion to exclude any of those admissions or records but I find nothing which requires me so to do.

75.  Therefore, I admit into evidence all those verbal admissions, the notices, and the written records.

The General Issue

76.  Upon my ruling that there was a case to answer in respect of all three charges laid against the Defendant, he elected not to testify on the general issue. He also called no witnesses. As mentioned above, such is certainly his right.

77.  As there are three charges, I am going to consider each charge separately. Before a conviction can be entered, the prosecution must prove each and every element of the charge beyond a reasonable doubt.

78.  On the evidence before me, the Defendant admitted at the time of his arrest that he had stolen copper pipes from the Site twice. Later on, he also confirmed such admissions in the post-record.

79.  Then, in the 1^st record of interview taken by PW3, the Defendant admitted that he had climbed into the Site and had stolen 10 copper pipes on 1 October 2011. The pipes were subsequently sold. 

80.  In the Defendant’s 2^nd record of interview taken by PW5, the Defendant admitted that on both occasions, that is, on 1 and 5 October 2011, he crawled underneath the gate of the Site through the space on Queen’s Road East in the small hours to gain entry to the Site. Then, he stole the pipes from the 2/F of the Site and put them into a canvas bag which he brought along.

81.  In the Defendant’s 3^rd record of interview, he admitted having stolen several tens of copper pipes from the 2/F of the Site in the small hours of 27 September 2011. He later sold them, getting about HK$ 2,000-3,000 which he had spent on food. Again, he admitted gaining entry by crawling underneath the gate.

82.  The Defendant’s above admissions were clear and unambiguous. I attach full weight to them. I am sure that, as admitted by the Defendant, he entered the Site in the early hours of 27 September, 1 October and 5 October 2011 by crawling underneath the gate. He then took away the copper pipes and broke them into smaller pieces before putting them inside the canvas bag which he brought along.

83.  Mr. Chiu submitted that PW1 and PW2’s evidence was inconsistent with the Defendant’s admissions. On the 1^st two occasions, PW1 said that copper pipes were stolen from the L/G Floor, not the 2/F. On the 3^rd occasion, PW2’s evidence was that the pipes were stolen from the 3/F. Therefore, Mr. Chiu suggested that the Defendant’s admissions did not support these charges. I do not agree.

84.  Whether the copper pipes were stolen from the L/G Floor or from the 2/F or 3/F, it remains a fact that, on the Defendant’s own admissions, those were taken from the Site on the occasions mentioned.

85.  Moreover, although PW2 referred to the 3/F when giving evidence, he also said it was two storeys up from the street level. Therefore, I am sure that PW2 simply mis-described the room as on the 3/F when in fact it should be on the 2/F. In any event, PW1’s evidence was that the pipes were missing from the 2/F. Further, on this 3^rd occasion, the Defendant was actually seen creeping out from the Site with a bag of 32 copper pipes (P7) which PW1 confirmed to be like those missing pipes. The evidence was overwhelming.

86.  Therefore, although the Defendant had incorrectly given 2/F as the place from which he stole the copper pipes on the 1^st two occasions, I do not find it to have affected the charges. The particular floor from which the Defendant took the pipes is immaterial.

87.  The following, however, are relevant : the Defendant admitted stealing several tens of copper pipes from the Site on the first occasion. This is consistent with PW1’s evidence that about 30 copper pipes were missing on that occasion. On the 2^nd occasion, the Defendant admitted having taken away 10 copper pipes from the Site. Again, PW1’s evidence was that such an amount of pipes were found missing on the 2^nd occasion. Then, on the 3^rd occasion, PW1 said that about 10 copper pipes were missing. This time, when the Defendant was arrested, he was found to have 32 cut-up copper pipes with him. The fact that the pipes had been cut up matches with PW1’s observation that there were cut-up pipes left on the ground.

88.  Judging from the evidence before me and from the admitted timings of the burglaries as well as the number of pipes admitted to have been stolen, I am sure that the admissions made by the Defendant relate to the burglaries referred to in charges (1), (2) and (3), not other burglaries which happened on the Site.

89.   During submissions, Mr. Chiu also suggested that the space underneath the gate was not large enough for the Defendant to creep in. I do not agree. From the photos, there is an obvious gap between the canvas covering and the ground. Moreover, the Defendant himself admitted having crawled into the Site from underneath the gate. There is no merit in this submission.

Conclusion

90.  Having considered all the evidence adduced and counsel’s submissions, and having attached full weight to the Defendant’s own admissions, I am sure that on each of the three occasions to which charges (1) to (3) relate, the Defendant entered the Site as a trespasser. He then stole copper pipes from there.

91.  In other words, the prosecution has proved each and every element of burglary against the Defendant beyond a reasonable doubt. I convict him of the 1st, 2nd and the 3rd charge accordingly.