HKSAR v. WEI GUOLIANG

DCCC 202/2022

[2023] HKDC 686

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 202 OF 2022

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REASONS FOR VERDICT

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1.  The defendant is facing two charges, he pleads guilty to the remaining in Hong Kong without the authority of the Director of Immigration charge (Charge 3), on the burglary charge (Charge 1, he is jointly charged with D1)  he pleads not guilty and stands trial.

The prosecution case

2.  At 1000 hours on 19 June 2021, the Victim (Ms Cheng)  left her house, she returned at 2145 and found her house was burgled where her belongings were scattered on the floor of her bedroom, and the window of her bedroom was pried open, the following items were stolen,

(a)  Around $25,000 cash;

(b)  Two gold necklaces with pendant;

(c)  One gold wrist chain with pendant;

(d)  Eight pairs of earrings;

(e)  One ring;

(f)  Some ID photos;

(g)  Two bracelets (one of which is Cartier branded known as E1);

(h)  Three wristwatches (two of which that came with a box, one of the three wristwatches is Longines branded known as E2);

(i)  One handbag (E3);

(j)  11 pieces of earrings (among 10 of the 11 pieces, four pieces known as E4, one other piece known as E5, two other pieces known as E6, two other pieces known as E7 and one other piece known as E8)

3.  Upon investigation, the identity and the location of the suspects were surfaced, on the strength of a search warrant, a team of police officers (including PW1 and PW2)  raided a flat located at 5/F Un Chau Street, (“the Flat”)  and found there were 4 rooms in the Flat, D1 and D2 were found inside one of the rooms with no door (Room A”), D1 was on the upper compartment whereas D2 was on the lower compartment of a bunk bed.

4.  Upon search, the following items (including stolen items)  were found at different locations inside Room A,

(a)  At the upper compartment of the bunk bed, E1, E2, two non-personalised Octopus cards (S/N 1001674725 and S/N 1015157437), one bank card (S/N 62178526000028076495, a non-Hong Kong issued bank card with no name), one necklace, four rings, US$37 cash, RMB710 cash, HK$276 cash, mobile phone, and screw driver were found. On a bag hanging to the side of the upper compartment of the bunk bed, E4 was found;

(b)  At the lower compartment of the bunk bed, one mobile phone, one bracelet, HK$41.1 cash and RMB 1 cash were found;

(c)  On a chair bedside the bunk bed, E5 were found;

(d)  Inside a black “OUTLANSHI” rucksack located beside the bunk bed, HK$283 cash, one non-personalised Octopus Card (S/N 354057192), one flashlight, one iron pry bar and one pair of black gloves were found;

(e)  Under the bunk bed, E3, E6, E7, E8, one screw driver, one spanner, two pairs of pliers, our pairs of gloves, two wristwatches, 24 rings, 26 other pieces of earrings and two necklaces were found.

5.  Further investigation discovered the movement records shown on the 2 octopus cards seized inside Room A.

(a)  S/N 1001674725 (found at the upper compartment of Room A, occupied by D1)  was used to travel from Cheung Sha Wan to Siu Hong MTR in between 1808 to 1848 hours and 19 June 2021, and from Siu Hong to Cheung Sha Wan MTR station in between 2120 hours to 2156 hours on the same day;

(b)  S/N 354057192 (found inside the black “OUTLANSHI” rucksack beside the bunk bed in Room A)  was used at the same place and time as stated above.

The Defence case

6.  D2 came to Hong Kong illegally by boat from Shenzhen on 18 June 2021, the purpose of him coming to Hong Kong was to work for his boss, the boat trip and the place he stayed was arranged by his boss.

7.  When he landed in Hong Kong, he was taken to the Flat by a person arranged by his boss.  He at first slept on the floor of Room A since there were other persons occupying the bunk bed, when the person on the lower compartment of the bunk bed left, he took up the lower compartment and that was where he was found by police during the raid.

8.  He told us that he was only a mere acquaintance of D1 since they shared the same room, on the night in question, he slept the whole time and had no idea when and where did D1 go.

9.  He did not go out of the Flat once he was there and upon police arrival. He did not have any knowledge of the stolen properties.

Analysis

10.  I bear in mind the burden of proof is on the prosecution throughout, D2 has a clear record, good character directions apply.

11.  I find the evidence of D2 was extremely suspicious, for instance, he was arranged by his boss to go to Hong Kong to work, but when asked the nature or the type of work, he simply did not know.  It is hard to comprehend why one would risk their live sneaking into Hong Kong in the middle of the night by boat and without knowing what they would do in Hong Kong, it is too incredible that D2 didn’t even bother to ask his boss at least the type of work.

12.  Even if the evidence of D2 was suspicious, I still cannot dispel the notion that D2 might have no knowledge of the stolen properties or he did not take part in the burglary.  There is nothing to undermine his version of events when considering the evidence as a whole.  For instances, how long he had stayed in Room A, whether he had gone out of the Flat or the stolen items found were connected with him, there was no evidence from the prosecution to rebut that.

13.  Assuming the prosecution was correct, D2 was trying to distance himself from D1 and aware of the existence of the items found inside Room A and I were to reject D2’s evidence entirely.  I still am unable to conclude that he took part in the burglary or he was in possession of the stolen properties.

Recent possession

14.  As could be seen from the evidence, none of the stolen items were seized from the lower compartment of the bund bed where D2 slept, and those stolen items (if not most)  were hidden away and not easily visible to D2.  Further, no contact evidence was produced to connect D2 with the stolen items.

15.  The best could be said was that D2 was found inside Room A, but it was a room with no door, everyone inside the Flat could have gained access to it as it was the prosecution’s evidence that 7 other persons were arrested that night in the Flat.  The layout of Room A yet caused me another concern, clothings and numerous items were scattered around, it’s hard to say which item belonged to whom, this is another area the prosecution had difficulty proving, let alone to tie those stolen items up with D2.  The settings of Room A with a number of stools and a fridge, it is again something that might lend weight to the conclusion that it was a communal area, people in the flat could have placed their items there.

16.  The prosecution sought to argue D2 was occupying the lower bunk bed, a black OUTLANSHI bag was immediately beside an orange shirt on the ladder that D2 admitted was his; some of the stolen items found were directly underneath his bed.  It would be natural to hang his shirt just as it was natural to hang his bag there, so was it natural for D2 to put his items underneath the bed as he was on the lower compartment.

17.  That might be true, but it was just one of the inferences to be drawn and not the only inference and it was equally possible those items weren’t his. I am unable to come to the only reasonable inference that D2 had knowledge of the stolen items found nor was he in possession of those items.

Clothing of D2

18.  The clothing worn by the suspect as depicted in the photo was clearly different from what was photographed at Room A, besides, no clothing was seized and exhibited in Court which matched what was worn by the suspect, I don’t see how that strengthen the prosecution’s case.

Octopus Cards

19.  Again, I can’t say for sure the card belonged to D2 without further evidence in support, there was nothing that tend to suggest the card was his expect it was found inside Room A where D2 stayed, the card could easily have been used or owned by anyone in the Flat.

20.  I have not overlooked the facts that other tools found were highly likely to be in connection with burglaries, and it was probably true that D2 was part of a burglaries syndicate.  But that doesn’t advance the prosecution’s case any further than it now stands, whether D1 was involved in other burglary cases is irrelevant to the charge that now he faces.

21.  For the above reasons, the prosecution has failed to prove all the elements of the offence, the Verdict I return must be one of not guilty.