HKSAR v. YIM PAK-HO, MYRON

DCCC 81/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 81 OF 2013

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Reasons for Verdict

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1. Defendant, you pleaded guilty to one offence of theft, contrary to section 9 of the Theft Ordinance, Cap 210. Also you pleaded not guilty to one offence of attempted burglary, contrary to sections 11(1)(a) and (4) of the said ordinance and section 159G of the Crimes Ordinance, Cap 200. You also pleaded guilty to one offence of falsely pretending to be a public officer, contrary to section 22(1) of the Summary Offences Ordinance, Cap 228.

2. You admitted the facts in respect of Charges 1 and 3 and I convicted you on those admitted facts.  In respect of the 2nd charge, we proceeded to trial.

3. I deal first of all with the prosecution case in respect of Charge 2. 

4. This took place at the Hong Kong Police College, Aberdeen, Barrack Room 11, on the 1st Floor of Block C, East Wing, which is the living room for new recruits.  They put their personal property and uniforms in that room.  You who were neither a police officer nor a member of staff entered the college without permission. 

5. At about 1915 hours on 7 November last year, three recruits being PW2, 3 and 4 saw you acting suspiciously.  They followed you to Barrack Room 11 where you tampered with the padlock for about 3 minutes intending to break in and steal.  You were unable to open that padlock.  PW4 videoed you on his mobile phone.  When you found that you were under observation, you fled but you were intercepted by PWs 2 to 4.  You took out the warrant card which is the subject of Charge 1 and pretended to be a police officer which is Charge 3. 

6. You were arrested and cautioned and under caution you remained silent.  The warrant card was seized.

7. You resided at premises owned by PW1 since late 2009.  PW1, as we know, is a senior inspector of police.  PW1 confirmed you to be his friend and the warrant card belonged to him.  PW1 also confirmed that he was away from Hong Kong from 3 to 9 November inclusive and that you were not allowed to take that card.

8. A house search revealed from your room a number of police uniforms and other accoutrements including a leather belt, white shirt, trousers, jacket and shoulder badges which belonged to you.

9. In the video-recorded interview under caution you admitted entering the college without permission at about 1900 hours on 6 November and remaining there for about 25 minutes.  Further, at about 1900 hours on 7 November you entered again and tampered with the padlock with intent to enter Barrack Room 11.  You did this because you wanted to know more about the life of police training and did not steal anything.  These acts were recorded on CCTV.

10. The admitted facts which were produced as P10. P10 was read into evidence in accordance with the provisions of section 65B of the Criminal Procedure Ordinance, Cap 221.  They prove the following:

(1) Barrack Room 11, 1st Floor, Hong Kong Police College Aberdeen was the living room for new recruits. They put their personal property and uniforms into that room. You were neither a police officer nor a member of staff and you entered the college without permission.

(2?) At about 1915 hours on 7 November last three recruits, PWs 2 to 4, saw you in the college. They followed you to Barrack Room 11. PW4 used his mobile phone to video you. The video was Exhibit P4.

(3) When you were intercepted by PWs 2 to 4, you immediately took out a police warrant card and showed it to PWs 2 to 4 and pretended to be a police officer. PWs 5 and 6 then arrived.

(4) The prosecution witnesses informed their trainer who was PW7. He arrived shortly and confirmed that you were not a police officer. You were then arrested and cautioned, you remained silent.

(5) A search revealed a police warrant card in the name of Tam Yun-chung, Senior Inspector of Police, PW1. This was seized and is P1. Nothing else suspicious was found.

(6) PW1 confirmed you to be his friend. Since 2009 you had lived in PW1’s premises at The Pacifica, Cheung Sha Wan.

(7) From 3 to 9 November last PW1 was out of Hong Kong. He had placed his warrant card in a box in his study/bedroom.

(8) Police searched your room at Pacifica and seized a number of police uniforms and accoutrements including a leather belt, white shirt, trousers, jacket, shoulder badges, etc, which you possessed. These were produced as Exhibit P6. A folder with 14 computer printouts of P6 and a printout of P1, the warrant card, is produced as Exhibit P6A.

(9) On 8 November of last year you gave a video-recorded interview under caution, it is voluntary. The video disk, transcript and English translation are produced as Exhibit P5A, P5B and P5C respectively.

(10) According to CCTV, you entered the college at 1922 hours on 6 November last and at about 1908 hours on 7 November last. The two disks are produced as P3A and P3B respectively.

(11) A photo album of 16 photos is produced as Exhibit P7.

(12) A folder with 16 computer printouts of the college is produced as Exhibit P8.

(13) A sketch not to scale of the 1st Floor of East Wing, Barrack Block C, is produced as Exhibit P9.

(14) The chain of evidence and accuracy of all prosecution exhibits is not disputed.

11. The prosecution case comprised mainly the above admitted facts but also three live prosecution witnesses were called. Additionally, I viewed the video footage taken by PW4’s phone. 

12. The first prosecution witness called was Recruit Police Constable 15011 who is listed as PW2.  In fairness, he added little to the admitted facts.  Basically he said that he, PW3 and 4 observed you tampering with the lock of the room opposite for about 3 minutes.  They watched from a darkened room opposite.  Something fell in the room and you left and they followed.  You produced the stolen warrant card and claimed to be a police officer, Tam Sir.

13. He was then cross-examined by Mr Luk but nothing in fact emerged, or I should say, nothing of significance. 

14. The next and perhaps most important live witness was Station Sergeant Shum listed as PW7.  He was tendered by the prosecution. He disagreed that you explained you were there because you were fond of police life and wanted to go into the room to look at what was there.  He also denied that you said you had no intention to steal from there.  He said you said you were looking for someone.  Later, it emerged it was someone whom PW7 recalled to have the surname Wun, and then you remembered the full name to be Wun Ho-yin.  He also said there was no such person in that block. 

15. The next prosecution witness was Senior Inspector of Police, Tam Yun-chung, PW1 on the list.  He was tendered and cross-examined.  He added nothing to the trial.  However, he did make the point that he had forgiven you who had taken his warrant card.  I do note that.

16. I then viewed two iPhone clips amounting to 2 minutes and 22 seconds in total.  These clearly showed you at the door, tampering with the lock and looking around. 

17. The prosecution case was then closed, and in the absence of any contrary submission I found there was a case for  you to answer.

18. Mr Luk then informed me that you had been fully advised of your rights.  You understood those rights and you elected to give evidence but call no defence witnesses.

19. You then gave evidence.  I shall summarize very briefly what you said. 

20. You said that you are 35 years of age, single and with a Master degree in counselling.  Your first degree had been in psychology.  You are now unemployed but had worked as a tutor in an education establishment for 5 years.  You quit that job because of this case, in fact the college asked you to resign.  You said you had known PW1 since about 2008 and lived in a flat owned by him since 2009.  PW1 himself did not reside in that flat. 

21. On 7 November of last year, before going to work you found you had no cash in your wallet.  You kept cash in a box, when you looked in that box you found PW1’s warrant card and took it.  You said you were very fond of the police and in fact had once been rescued by them.  You took the warrant card because you wanted to go into the Police College to see police life.  This you did after you had finished work.

22. You confirmed that you did try to find the digits on the padlock but failed.  You said you did this because you very much wanted to know about the life of police recruits.  You had peeped into the room but it was dark and you wanted to look inside.  You tried to hit the number of the combination lock, you tried for about 3 minutes.  You failed so you intended to leave.  You said you made use of no tools.  You repeated that you had no intention to steal or damage anything.  You were intercepted by a police recruit and later questioned by Station Sergeant Shum, PW7.

23. You accepted you had produced Senior Inspector Tam’s warrant card, P1, and claimed to be a police officer.  You accepted also that you did tell PW7 that you came to look for Wun Ho-yin.  There was no such person and you said you did this because you were very scared.  You went on to tell him that you wanted to see police life.  And you finished your evidence-in-chief by reiterating that you had no intention to steal from that room.

24. You were then cross-examined by Mr Wong.  You claimed to have had an interest in police since you were 5, that you were enrolled as a junior police cadet.  You said you wanted to see the police bedrooms, restrooms and living environment.  You had asked PW1 but his explanation had been brief.  You said that PW1 was in fact an inspector and you wanted to know about recruits.  You agreed that you knew you should not enter the Police College.  You accepted you should not have tampered with the lock. You said you really wanted to know about the life of recruits, just look and then go.  You disagreed that your intention was to steal and you disagreed that you never told the station sergeant you wanted to know about the life of recruits. 

25. In response to questions from the bench, you accepted you had never applied to join the police nor had you asked PW1 if he could arrange for you to see around the college.  You said you had looked on the internet for information. 

26. With my permission and at my invitation, Mr Luk asked a few questions of you.  He said that the internet showed you methods of training but there were other things you wanted to know about, accommodation, rests, etc.  Defence then closed its case.

27. Both Mr Wong for the prosecution and Mr Luk for defence made final submissions which I took into account when reaching my verdict.

28. I turn now to the verdict itself.

29. This is a most unusual case in that there are no factual issues to be resolved in the sense that the prosecution case as to what occurred perfectly mirrors what you accept.  The only issue to be resolved relates to whether or not the prosecution have proved beyond all reasonable doubt that your intent was to steal from Barrack Room 11 if you gained entry.

30. You fully accept that you entered the college as a trespasser and you compounded that trespass by entering Block C and you attempted to enter the room in question by tampering with the lock in an ultimately fruitless attempt to find the correct combinations to open it.

31. Your claim and assertion both in your video recorded interview and in your evidence is that you were driven by an overwhelming desire to look inside the room in order to gain more knowledge and appreciation of the life of a police recruit.

32. On the other hand, the prosecution contend that the evidence and the circumstances must lead the court to the irresistible inference that your real and true purpose was to steal from there.  From the evidence, it is clear to me, and the prosecution do not suggest otherwise, that you did and do still seem to have a morbid obsession or interest in the police. There is not a shred of evidence to the contrary. 

33. In my opinion, this is neutral as to intent as I shall explain later.  Your obsession is fully supported and evinced by the possession of all the police uniforms, accoutrements and equipment found at your residence and produced as P6.  As there has been no suggestion or evidence to show otherwise, I fully accept that those articles were lawfully obtained and owned by you.  This is a large collection and as such, I am of the opinion that such a collection should not be regarded as complete.  There is every indication and likelihood that you would wish to add to it.

34. Further, whilst the goods in your possession were lawfully obtained, there is no evidence that goods in the future would be lawfully acquired and indeed there is always the possibility of a change to you acquiring such goods by unlawful means.  This would be fuelled either by economic necessity or difficulty in sourcing such articles.  At this point we deal only with possibilities. 

35. Taking the matter further, there is indeed your theft of the warrant card of your friend, owned by Senior Inspector Tam Yun-chung, and this shows a propensity to acquire police material by dishonest means.  This is compounded by your willingness to invoke deceit as it was used to try and escape when caught by the vigilant recruits.  Those three recruits should be highly commended for their vigilance. 

36. You make further admissions of dishonesty in that you lied to Station Sergeant Shum by claiming to be searching for a non-existent person.  Whether you then went on to lay claim to the reason for entering the room so as merely to have a look is, in my opinion, of limited importance.  I am even prepared to give you the benefit of the doubt on that point.  You have therefore established yourself as someone who is a thief and a liar and this is by your own admission.

37. We also know from the admitted facts that the previous night, 6 November, you had entered the college again as a trespasser. In my opinion, this is entirely consistent with what is in common parlance called “casing the joint”.  This is an act highly supportive of a would-be burglar spying on the premises he intends to steal from.  While not wishing to make too much of this issue, but given the nature of your obsession for police life, and if it is, as you claim, why did you not or try to follow a career in the Police Force, that is the question that is posed.  This is of course of limited relevance.

38. I do note and accept that you did become a junior police cadet.  This, however, does not seem to have taken the edge off your obsession.  Also, if your purpose was merely to see and appreciate the living accommodation of police recruits, why did you not, as you so admit, speak with Senior Inspector Tam to ask if he could arrange for you to visit the college as an invited guest?

39. But what weighs with me most is would anyone with a modicum of common sense risk illegally entering a police college not once but twice and attempt to enter a locked room whilst in possession of stolen goods simply to see inside.  I draw the conclusion that this cannot be so, and I pose the question: what indeed did you expect to see?  There could only be furniture, uniforms and fittings.  In my opinion, it is incredible and it is untrue that your intention was merely to look inside. 

40. Drawing all the facts and circumstances together, the only and irresistible inference I can indeed draw is that you intended to enter Barrack Room 11 to steal the goods of police recruits, that it was your hope and intention to add to your collection.  Therefore, I am satisfied beyond all reasonable doubt that on the 2nd charge you are guilty and I convict you.