HKSAR v. CHOW WILLIAM GEORGE

DCCC 725/2017

[2018] HKDC 427

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 725 OF 2017

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

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

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

Reasons for Verdict

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

1.  The defendant, Mr George William Chow, faces a single charge of attempted burglary.

2.  The facts are that at around 8 am on 28 June 2017, Mr Chow was seen to be tampering with a combination lock that locked the roller shutter at a shop in Sham Shui Po in Cheung Sha Wan Road.  He was also seen to be inserting various other objects such as the handle of a walking stick and a plastic tube into a space behind the lock. This was done in full view, and eventually police were called by a bystander, who later gave evidence.

3.  The defendant was seen to be talking to strangers.  Later there was a psychiatric examination ordered by a magistrate. He was at that time diagnosed with schizoaffective disorder.

4.  The defendant in fact gave evidence.  He said he was building a stick to give to a neighbour and at the time was affected by manic delusions.

5.  The issue is whether the defendant ever intended to enter the shop and steal therein as is required by the charge of attempted burglary.

6.  The evidence was largely not in dispute.  The roller door shutter to the shop had been locked by a combination lock on the evening of 27 June 2017 by PW2.  She observed that on the 28th there were no signs of damage or tampering to the lock when she saw it later.

7.  PW3 was a security guard.  He had seen the defendant in front of the roller door shutter to the shop trying to place items into a hole behind the combination lock.  He called the situation “messy” and it felt very strange.  He said there were cans of spray paint, model paint, a barbecue fork, a plastic hose with two picks inserted in it, and all this was inserted into a water bottle.  Also there was the handle of a walking stick. These items were later photographed and exhibited as P17.

8.  The third prosecution witness initially thought the defendant may be trying to break into the shop, but later considered his behaviour was so unusual and so bizarre that he discounted that idea. Eventually he saw the defendant walk off.

9.  PW4, Mr Lai, saw the defendant, it would appear, slightly later.  He said he saw the defendant tamper with the lock by patting it.  He saw the defendant roll the combination lock and touch the roller door.  He thought he might be trying to enter, so he called the police. He saw the defendant walking away towards the MTR entrance and talking to strangers.

10.  The police arrived and arrested the defendant. The defendant was seen by them to be shivering and again talking to strangers.

11.  In addition to this evidence there was evidence from two psychiatrists who had seen the defendant in August of 2017.  He was found by both of them to be suffering from this schizoaffective disorder, and one of them described him as having a paranoid delusion.

12.  The defendant is also of clear record in Hong Kong.

13.  The defendant gave evidence.  He is in fact a US citizen, but says he has right of abode in Hong Kong, and would appear to do so.  He lives in Hong Kong currently and is in receipt of CSSA payments.  He acknowledged he had had mental illness, particularly schizoaffective disorder, with bipolar aspects.  He says he becomes subject to mania and delusions when he is ill.  In June of 2017 he had become stressed.  He had lost his wallet. He was going to be evicted from the Apple Hostel, where he was living, and he had also formed an animosity to a person who lived nearby this hostel, describing him as a neighbour.

14.  On the morning in question, he decided to construct a stick for his neighbour, the kind that blind people use.  This was done as some kind of ironic comment to mock his neighbour by giving him a stick to say he could not see properly, and he was doing this by using scrap items he had found in a rubbish bin which is apparently around the corner from the shop at 203 Cheung Sha Wan Road.  This is what he was doing when he was arrested by the police.

15.  As I say, in Exhibit 17 the items can be seen. It can be seen by looking at the photograph that none of these items could have been of any practical assistance in removing the combination lock or trying or attempting to gain entry into the premises.

16.  The evidence of the fourth witness, Mr Lai, that the defendant twirled the combination lock, does not assist greatly, as such locks are designed so that such a method of unlocking them is statistically impossible.

17.  On this evidence, the prosecution say the defendant was clearly living rough and without money, as admitted by him.  They say he was tampering with the lock in a poorly thought out attempt to get entry into the shop to see if there was anything or something he could steal or use therein. 

18.  The defence say the defendant was clearly suffering from a paranoid delusion and acting on it.  He had assembled a series of bizarre and unusual items and was acting and speaking incoherently.  No inference could be drawn that such actions were directed towards gaining entry to the premises and stealing from it.

19.  The charge is attempted burglary.  The prosecution must prove that beyond reasonable doubt.  Burglary, of course, requires that a person enters as a trespasser, and within this case, an attempt to steal therein.

20.  Here, the charge is an attempt to commit that offence.  This requires the defendant’s acts be more than merely preparatory, and furthermore that they be accompanied by the requisite intent; that is, intent to commit the full offence; in this case, an intent to steal.

21.  In this case, the evidence of PW4 was that the defendant patted the lock, touched the roller door and moved the combination lock dials.  Were these acts to be accompanied by an intent to steal, then they would be more than merely preparatory to the act of burglary, as they would involve testing whether the roller shutter and the lock were secure. 

22.  It would appear that at least a bare prima facie case exists for the actus reus of the offence of attempted burglary is made out on these facts.  However, can it be rationally concluded that this act was in any way accompanied by an intent to steal?  There is no direct evidence as to the defendant’s - intent in this case.  That must be and can only be inferred from the surrounding circumstances.  Furthermore, to prove an inferred fact, it must be the only available reasonable inference that can be drawn or it must, in other words, be capable of being drawn beyond reasonable doubt on the facts.

23.  The surrounding relevant circumstances appear to be the defendant was suffering from an untreated schizoaffective disorder.  He had not been, on his evidence, and I accept this, taking his medication, and that was borne out by the investigating doctors in August.  He was suffering, as I say, from untreated schizoaffective disorder whereby his thinking was influence by paranoid delusions and manic behaviour.

24.  None of the articles he had assembled in front of the roller shutter door could be used to gain access to the premises by disabling the lock or the shutter.  He was doing this in broad daylight, at the beginning of rush hour, openly in front of passersby.  PW3, who watched him for some time, considered his behaviour to not be an attempt to break in but simply odd behaviour.

25.  On arrest, the defendant was found to be shivering and talking to strangers.  “Mumbling” is a word given by another witness.  It would appear from this the defendant could have been possibly acting under the influence of paranoid delusion, and his presence there and his behaviour could possibly be accounted for in this way.

26.  In these circumstances, I find it is simply not possible to draw the inference the defendant must have had an intent to steal when he acted as he did.

27.  Therefore, that element of the charge cannot be proved, and the charge must be dismissed, and that is my ruling:  charge dismissed.