HKSAR v. WONG YUE TAT, SKY

DCCC 102/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 102 OF 2015

----------------------

----------------------

---------------------

Reasons for Verdict

---------------------

1.  The defendant has pleaded not guilty to one charge of burglary on this indictment.

2.  The burglary occurred at what is described as a vegetable warehouse in Tai Po, where the takings for a number of vegetable stalls were stored overnight in a blue box.

3.  The defendant helped another man enter the warehouse by helping him push up an unlocked steel roller shutter.  That man took two shopping bags filled with money.  The defendant later entered the warehouse and returned the bags to the blue box.  All this was captured by CCTV cameras inside and outside the warehouse.

4.  The defendant has said that he was helping an acquaintance reclaim a debt owed by the owner of the warehouse to that acquaintance.  He has also said he was only assisting the acquaintance to locate the owner of the warehouse, and was not aware of the taking of the bags of money until after it was completed.  When he found this out, he then returned the bags.  He was not aware that any money had been taken.

5.  In a record of interview, the defendant gave a different but exculpatory account in which he said that he was assisting the unidentified man to reclaim a debt, that the man would take what was owed to him, but when the defendant found that too much had been taken, he re-entered the warehouse to return the remaining money.

6.  The background is as follows.  The location where the burglary occurred was at the Shap Pat Leung Vegetable Store in Fu Shin Street in Tai Po.  That premises is being called “the warehouse”. This premises is a stall and a warehouse that was owned by PW1.  PW1 operated a total of 15 vegetable stalls.  Each day the 15 vegetable stalls would send their takings to the warehouse, where they would be stored in an unlocked blue plastic box.

7.  The warehouse was covered inside and outside by a CCTV recording system.  The warehouse had a metal roller shutter door as its front entry.  The lock on this had been broken for a number of years.  There was a back door as well.  Entry to the warehouse through the roller shutter could simply be gained by pushing up the shutter door.  It was a heavy door, and would apparently need up to two persons to roll the door up.

8.  The defendant had been employed by PW1 on an off and on basis for a number of years.  The defendant sold vegetables, handled the cash, and sorted vegetables.  The defendant last worked for PW1 in July of 2013.  The defendant was aware of both the unlocked blue box and also the broken shutter door.

9.  The takings from each stall would be placed in a ziplock bag with the amount written on it.  These smaller bags would be placed in three large shopping-type bags, depending on the district they came from, and stored in the blue plastic box.

10.  On 8 October 2013, it appeared that the takings of two stalls in the Ma On Shan area could not be found.  As a result, PW1, who was in the mainland at the time, viewed the CCTV recording remotely.  He looked at the recording for the evening of 7 October 2013. He saw that at 11.04, two men attended the warehouse.  One was the defendant, together with another man.  He is being referred to as “WP1”, an unidentified male.

11.  At about 11.04, this man, WP1, entered the warehouse after the shutter was raised.  About 45 seconds later, this man goes to the blue box and takes two large bags of, apparently, money out of the blue box.  He then leaves the warehouse through the raised roller shutter door.

12.  Later, at about 2330 hours, the defendant and this man, WP1, return to the warehouse.  The defendant then enters through the raised roller shutter door and returns two large bags to the blue box.  The defendant has put on a cap and surgical mask to obscure his features.

13.  Later on, the defendant was arrested.  Under caution, he says the following:  that a friend, “Ah Yung” said PW1 owed him money.  The defendant knew that the roller shutter was out of order, and he went on:  “So I later helped ‘Ah Yung’ raise the roller shutter with hands, and let ‘Ah Yung’ go inside to take a bag of money.  Then I told him to get his money back, and took the bag and the remaining money back to the inside before I left.”

14.  When he was asked by the police, he said he did not know how to contact “Ah Yung”.  In a later record of interview, the defendant said he had met “Ah Yung” near the warehouse accidentally.  “Ah Yung” said PW1 owed him a few thousand dollars.  “Ah Yung” asked the defendant to either repay the money for PW1, or to assist him to open the metal gate of the premises.  The defendant said he had no money, and had no choice but to assist “Ah Yung”.

15.  They went to the warehouse.  The defendant raised the roller shutter.  “Ah Yung” went in by himself, and “Ah Yung” came out carrying two bags of money.  The defendant said:  “I asked why he took that much, since he said the boss owed him a thousand-odd dollars.  I told him to put the extra money back inside, so I took the two bags of money back inside.”  Also, in question 8 of that statement, it was asked, “Question:  Do you know what ‘Ah Yung’ took?”  And the answer was:  “I only saw ‘Ah Yung’ take some banknotes from the bag, but of course I did not know the amount.”

16.  The summary of the evidence at the trial is as follows.  The contents of the CCTV recording and the defendant’s post‑record and record of interview were agreed.

17.  The defendant’s previous employment by PW1 was not disputed.  Neither was PW1’s evidence about the placing of the money in the blue box and the damage to the roller shutter.  PW1’s identification of the defendant in the CCTV recording was not in dispute, and the defendant’s actions, as recorded by the CCTV, were not disputed.

18.  PW1 had denied that he knew “Ah Yung”.  He denied that he consumed or had ever consumed the drug “Ice” or that such a drug had been supplied to him by “Ah Yung”.  PW1 in fact said he had never seen the other man in the CCTV recording that the defendant had identified as “Ah Yung”.  PW1 did say he knew the defendant’s telephone number, and that he had SMSed him, asking for the return of the money, on 9 October.  The defendant had never replied.

19.  There was a body of evidence by PW1 and PW2 to attempt to establish the amount of money that had gone missing.  However, none of this was in fact admissible to prove the sum of money which had been taken. Insofar as the prosecution attempted to prove money had been taken, they relied upon the contents of the CCTV recording and the defendant’s record of interview, particularly where he admitted a sum of money, or some banknotes, had been taken.

20.  The defendant gave evidence.  The defendant confirmed he had worked for PW1 since 2011 and he finished work in July of 2013.  He had handled money and he knew about the storing of the takings in the blue box.  He said that he and PW1 were also friends.  He also knew “Ah Yung”, who he had met whilst they were both in a drug addiction treatment centre in 2009.  The defendant had introduced PW1 to “Ah Yung” because PW1 took “Ice”, and “Ah Yung” could supply “Ice”.  The defendant knew PW1 took “Ice” as he had seen PW1’s equipment for consuming the drug.  He had given “Ah Yung” PW1’s telephone number and left “Ah Yung” with the initiative to contact PW1. He knew there was a money dispute between PW1 and “Ah Yung”.  He was not entirely clear, but it was something concerning drugs.  He did not know how much money was involved, but it seemed to be thousands.

21.  On 7 October, after leaving in the evening, he met “Ah Yung” as he was leaving the place where he had been eating. “Ah Yung” told him PW1 owed him money.  He asked him to open the door for him - that means the roller door - so he, “Ah Yung”, could go inside to look for PW1.  The defendant said he was not surprised; as PW1 took drugs and “Ah Yung” took drugs, he thought it must be about drugs.  “Ah Yung” told him to either repay the debt for him - that is, PW1 - or open the door for him to let him - that is, “Ah Yung” - look for PW1.

22.  The defendant lifted up the shutter to let “Ah Yung” go inside.  He was inside for about five minutes.  When “Ah Yung” came out, he held two bags of money.  He said he did not find the boss.  The defendant told him to put the money back, but he refused.  The defendant said, “Since you refuse, I will take the money back for you.”  Then he took the two bags of money from “Ah Yung” and put them back.  “Ah Yung” helped him lift up the shutter.

23.  The defendant said he knew about the CCTV system; he had helped install it.  When he installed it, the front of the shop was clearly shown, including any manipulation of the roller shutter.  That was not the case in the recording shown to the court.

24.  He said that he put on a face mask and cap when he entered, as he feared PW1 would misunderstand that he had taken part in stealing money from him.  He only let “Ah Yung” into the premises to look for PW1, and he never expected that “Ah Yung” would take money from the blue box.

25.  As far as the charge the defendant faces is concerned, it requires the prosecution to prove beyond reasonable doubt the defendant entered the premises - that is, the Shap Pat Leung Vegetable Store - as a trespasser and therein stole a sum of money.

26.  The elements of stealing naturally require the prosecution to prove, again beyond a reasonable doubt, the defendant dishonestly appropriated property belonging to another with the intention of permanently depriving the other of it, and as the prosecution bring the charge, naturally, the burden of proving it remains on them at all times, and that is to prove it beyond reasonable doubt.

27.  The prosecution allege that the defendant and the other man shown in the CCTV acted in concert to steal money from the blue box.

28.  The defendant, at trial, said in his defence that he did not know or could foresee that “Ah Yung” would steal money from inside the premises when he assisted him to enter the premises.  Therefore, although there was a joint enterprise to assist “Ah Yung” to enter the premises as a trespasser, that was as far as their joint enterprise went.  “Ah Yung” entered the premises to look for PW1.  There was no joint enterprise to steal or, in fact, to take any sum of money.

29.  I note that in Exhibits P3 and P4, the defendant’s record of interview and cautioned statement, the defendant appears to put his defence differently, although he did not resile from the contents of these documents in his evidence.  In his records of interview he said he assisted “Ah Yung” to reclaim a debt.

30.  It had been his case in the interview that he was not dishonest, as he believed that the debt from PW1 was owed to “Ah Yung”, and he believed that it was not dishonest for him to assist “Ah Yung” to retrieve the money.

31.  As far as the issues are concerned, the defence proffered by the defendant and his challenge of PW1 were the sole issues of credibility to be determined.

32.  The prosecution did not accept any of the accounts given by the defendant to the court.  They maintained he had been largely untruthful throughout.

33.  The evidence of PW1 was that he was not a consumer of drugs and that he did not know “Ah Yung”.  The defendant’s evidence was that he knew PW1 consumed the drug “Ice”.  He had seen his equipment for the consumption of the drug.  He had introduced “Ah Yung” to PW1 so that PW1 could explore the question of drug supply with “Ah Yung”.  Clearly, both PW1 and the defendant could not be both telling the truth about this issue.

34.  Consequent upon this issue was the defendant’s evidence that “Ah Yung” had approached the defendant to settle a debt owed by PW1 to “Ah Yung”.  That, he says, is the reason they went to the warehouse that evening:  to find PW1.  If PW1 did not know “Ah Yung”, that could hardly be the case.  There would be no legitimate reason for them to go there and no reason for the defendant to assist “Ah Yung” in opening the roller shutter door. Furthermore, the explanation in the record of interview that the defendant assisted “Ah Yung” to reclaim a debt could not be a credible or viable account.

35.  It was clear to me, having seen both PW1 and the defendant and heard from them, that PW1 was an honest, reliable and credible witness, and that the defendant was none of the above.

36.  PW1 gave a consistent and inherently credible account of his dealing with the defendant.  I accepted PW1’s evidence when he said that he did not consume drugs and that he did not know “Ah Yung”.  He readily identified the defendant in the CCTV, who supposedly knew about his, PW1’s, drug habit.  The question remains why would he not also identify “Ah Yung” if he knew him?  I had no hesitation in accepting PW1’s evidence that he did not know “Ah Yung”; he had never met him; he did not know the man shown in the CCTV taking the bags from the blue box; that he did not consume drugs; and that he did not owe any money to anybody in respect of drugs.

37.  The defendant has clearly been untruthful throughout.  Firstly, his evidence in court is at odds with his account in his record of interview.  In his evidence in court he was clear they only went to the warehouse to find PW1.  In his record of interview he said that he had let “Ah Yung” go inside to take a bag of money.  He also said, “I told him to get his money back.”  Secondly, there was no actual reason for the two men to initially approach through the roller shutter.  PW1 had said that he did occasionally sleep in the cockloft at the warehouse, but the way to approach this location was via the back door, yet clearly no attempt was made to do this.  They go straight to the roller shutter, and the unidentified man goes straight to the blue box within 45 seconds of his entry into the premises.  The CCTV recording, which is unchallenged, clearly gives the lie to the defendant’s account in court.

38.  Thirdly, another issue raised by the prosecution is why go there at all?  Why not just ring up PW1?  The defendant had his number.  PW1 called him the next day to ask for the return of the money.  In evidence, the defendant said he had rung PW1 just before they entered.  He received no reply.  So the question remains:  why go in there if the object is simply to find PW1?  Even if PW1 was not there, why go to the warehouse if they were just looking for him?  Surely it is better to wait for him to return.

39.  Also, there is no logical reason why the defendant should help “Ah Yung” in this way.  It is never explained, and the defendant’s help goes beyond mere friendship.  The defendant never explained why he should assume responsibility for PW1’s alleged debt.

40.  It was clear to me that the defendant lied in his evidence.  I rejected his evidence in court as a clear fabrication.  I also determined that the explanation given for helping “Ah Yung” and going to the warehouse in the record of interview was also a clear fabrication.  There is no need to consider the explanation forwarded in the record of interview.  As to whether the defendant thought subjectively that he was not acting dishonestly, the reason is that that explanation is untruthful.  It is a transparent falsehood.

41.  I find that neither the defendant nor the unidentified man went to the warehouse that night in relation to either finding PW1 or collecting a supposed drug debt owed to “Ah Yung”.  They went there to get money that the defendant knew was there and to enter via the broken roller shutter that the defendant knew was broken and unlocked.

42.  The unidentified man went in because he is unidentified.  The existence of the CCTV is known, but the defendant also knew that PW1 could not recognise the man who remains unidentified.  I also find that he was aware of the limitations of the CCTV, that the men manipulating the roller shutter would not be covered.  It is clear, because when the defendant returned the bags, as is shown at 11.30, he donned a disguise, thinking that he would not be capable of being identified.

43.  I find this clearly illustrates the dishonest nature of the enterprise.  As I have said, the exculpatory explanation in the record of interview and after caution does not arise for consideration.  I am left with the evidence of the prosecution:  the CCTV recordings; PW1’s evidence; the inculpatory parts of the defendant’s record of interview, which are repeated by him and are verified by the CCTV recordings.

44.  I find the prosecution can show beyond reasonable doubt that the defendant and the unidentified man, in combination, raised the roller shutter to enable access by the unidentified man to the blue box, where two large bags of money were taken.  The defendant admits, and it is proved, that some banknotes were taken from the two bags.  This was before the defendant, in disguise, returned them.

45.  I did consider the defendant’s return to the premises to apparently restore the bags.  This, I find, is with a view to evade detection, because if the big bags were gone, then that would clearly be a matter of theft, whereas the loss of smaller bags or smaller sums of money could be the result of oversight or negligence.  I find the defendant’s return of the bags was in the hope to avoid detection.

46.  I find this evidence proves all the elements of this offence beyond reasonable doubt, and I convict the defendant of the offence of burglary accordingly.