HKSAR v. CHEUNG KIM HO

DCCC 788/2023

[2024] HKDC 946

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 788 OF 2023

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REASONS FOR VERDICT

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1.  The Defendant (“D”)  pleaded not guilty to one count of “Burglary”, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 and one count of “Assaulting a police officer in the due execution of his duty”, contrary to section 36(b)  of the Offences against the Person Ordinance, Cap 212.

2.  The particulars of the first charge allege that D, on 1 November 2022, in Hong Kong, having entered as a trespasser part of a building known as “Electrical meter room (B)” (“Location 1”), 34/F, Sau Yat House, Sau Mau Ping Estate, Sau Mau Ping, Kowloon (“the Estate”), stole therein about 2.2 metres of copper plates.

3.  The particulars of the second charge allege that D, on the same date, at the staircase between 34/F and 35/F (“Location 2”)  of Sau Yat House of the Estate, assaulted SGT 58723 (“PW3”), a police officer of the Hong Kong Police Force, in the due execution of his duty.

THE PROSECUTION CASE

4.  On 1 November 2022, PW3, SSGT 33508 (“PW1”), PC 27507 (“PW2”)  and PC 16755 (“PW4”)  and party were conducting anti-crime patrol in the Estate. They had been briefed that morning about common crimes that had been occurring in the area, which included burglary of copper wires/plates from meter rooms. At around 12:35pm, PW2 patrolled to staircase B of 34/F of Sau Yat House of the Estate where the electric meter room (i.e., Location 1)  was located behind a smoke door with a narrow window. He heard a “tak” sound from outside the smoke door. When PW2 looked through the window of the smoke door, he saw the following: D was standing outside the meter room holding a padlock; he opened the door of the meter room and stepped with his left leg into the meter room while his right leg was outside the meter room blocking the door from closing; he pick up one coil of copper wire/plate from the ground of the electric meter room and put the copper wire into a dark coloured recycle bag with a cartoon character (Exhibit P11)  (“D’s cartoon bag”); he closed the door of the meter room and locked it with the padlock; then, he turned left and went through the other smoke door. When D left, he was carrying his cartoon bag and also another gray bag (Exhibit P12), both of which had been placed on the ground outside the meter room. The observation was around 40-50 seconds long, and during the observation, the distance between D and PW2 was about 1.5 metres.

5.  PW2 informed PW1 that he had seen a suspicious person (i.e., D)  and thus they swept the staircase from 34/F to 30/F (staircase B)  and then back up from 30/F to 35/F (staircase A)  and then they went horizontally to staircase B, 35/F. At 12:45pm, PW1 and PW2 reached the landing of 35/F staircase B (near Location 2)  and PW2 saw through the glass window of the smoke door that D was messing with a red suitcase (Exhibit P9). PW2 intercepted and conducted a body search on D. Upon search, a silver key (Exhibit P13, “the Key”)  was found in the left pocket of D’s trousers and 3 strips of copper wire and miscellaneous items were found in D’s cartoon bag. Furthermore, miscellaneous parts and tools including bolt cutters (P4)  were found near the red suitcase.

6.  Subsequently, PW2 asked the security guard of the building whether anyone had borrowed the key to the padlock of the meter room (being the same key for all floors of the building), and the security guard said no one had done so. PW2 and PW4 then escorted D to sweep from 40/F to 20/F of the building, and when they arrived at the electric meter rooms of 34/F and 35/F, PW4 used the Key and successfully opened the padlocks thereat (but the same Key could not open the padlocks to the meter rooms on any of the other floors). PW4 entered the meter rooms on 34/F and 35/F and saw that copper wires/plates had been cut off from the wall (near the ceiling). The sweeping took around 1 hour. D was then taken back to the staircase between 34/F and 35/F (i.e., Location 2)  at around 2:20pm.

7.  From 2:20pm to 2:45pm, PW2 and other officers continued their enquiry with D at Location 2. At 2:45pm, PW2 was standing on the staircase above D. D was standing in front of PW3 and PW4 (as depicted by PW2 on Exhibit P8(15A)), when suddenly, D used his left hand to push PW3 on the abdomen and then used his right hand to grab a red screwdriver (Exhibit P16)  from the 3^rd step of the staircase (where exhibits had been laid out). Then, he yelled in foul language and stabbed the screwdriver at PW3’s abdomen, but PW3 successfully avoided the screwdriver and immediately used both hands to encircle D; both of them then fell on the ground. PW2 and PW4 controlled D by pressing him on the ground and by putting handcuffs on D. D was emotionally unstable and banged his head onto the ground 3-4 times. At 2:55pm, D was arrested for the two offences.

ADMITTED FACTS

8.  The following facts, inter alia, were admitted pursuant to section 65C of the Criminal Procedure Ordinance (Cap 221)  (see Exhibit P8):

(1)  At all material times, D was a technician employed by Creative Enterprise Holdings Limited (“Creative Enterprise”), which was a company responsible for looking after the buildings at the Estate. D was responsible for repair and inspection works in the Estate, that is, he was responsible for the interior of residential units, common area and storage rooms and the inspection work which was necessary before repair works began. Creative Enterprise had installed padlocks on the doors of the meter rooms in the buildings at the Estate which could be opened by the use of the one same key – which key was kept at in the security guard post of each individual residential block. D was not given the key to any building at the Estate and the handling of copper wires was not part of D’s duty. D would only ever be requested to enter an electric meter room if there was a maintenance request for dealing with a water leak, concrete spalling or wooden door replacement. Between 1 October 2022 and 1 November 2022 there were no such requests received. According to the guidelines of Creative Enterprise, employees should not enter meter rooms or place any personal belongings there, and employees should not make any spare keys to any electric meter room;

(2)  On 1 November 2022 at 12:18pm, D entered Sau Yat House without making any registration at the security post. D was on duty at the material time and part of his work schedule for the material day is produced as Exhibit P2/P2.1. (P2A is the English translation of P2.);

(3)  One of the 3 strips of copper (Exhibit P3)  was cut by a pair of bolt cutters (Exhibit P4)  that were found at the Estate;

(4)  Exhibit P5, a photograph album with a list of contents and 54 photographs taken by DPC 28339 and DPC 7263, accurately depicts the places and items connected to the case;

(5)  At approximately 1455 on 1 November 2022 at Location 2, D was arrested and cautioned by PC 27507 for the two subject offences. D did not say anything;

(6)  D requested, when in custody on 1 November 2022, to seek medical attention. D attended the Accident and Emergency Department of United Christian Hospital on 1 November 2022. The relevant medical report (Exhibit P6)  accurately sets out the injuries sustained by D on 1 November 2022. (P6 states that D reported an injury over his right wrist and right shin while he was arrested by the police, that there was a small abrasion over right dorsal wrist and right shin, and minimal tenderness over his right lateral knee, and that D was discharged with analgesics.);

(7)  The medical report of Dr Chan Lok Sze of United Christian Hospital accurately showing the injuries sustained by PW3 on 1 November 2022 is produced as Exhibit P7. (P7 states that PW3 complained of falling while on duty on 1 November 2022, that he suffered from bilateral elbows and bilateral knees contusion, had mild redness and pain over the contused regions, and was discharged with topical analgesics.)

DEFENCE CASE

9.  The defence made no midway submissions. After I ruled that there was a case to answer for both charges, D elected to give evidence (but did not call any other witness).

10.  It was D’s evidence that he went to work at the Estate on the subject day. He was to follow the work orders (Exhibit P2.1)  and inspect the residential units on the list. He started work at around 9:15am and had by about 12:10pm finished the list of inspections in the first 4 blocks of buildings in the Estate slotted for 10am to 12pm (see page 2 of Exhibit P2.1/P2A), but it was not yet lunchtime, so he moved on to the list for the second 4 blocks of buildings slotted for 2-4pm (see page 1 of Exhibit P2.1/P2A)  – and so he arrived at Sau Yat House at 12:18pm (see Exhibit D2, the CCTV screen capture of the security post)  to deal with the second list of requests. As shown in Exhibit D2, D was carrying his cartoon bag (which, according to D, contained some light tools and parts for water tanks)  on his left, and 2 mobile phones in his right hand when he entered the building.

11.  He first went up to 36/F of Sau Yat House to deal with Item 7 on page 1 of Exhibit P2.1/P2A (i.e., the request of the tenant at Room 3607 to repair the metal gate)  but the tenant was not in the flat and could not be reached by phone. As such, D decided to go down to 34/F of the building to deal with Item 1 on page 1 of Exhibit P2.1/P2A (i.e., the request of the tenant at Room 3414 to repair the metal gate). D took the stairs down from 36/F, and at around 12:23pm, between 34/F and 35/F, he was suddenly pressed down on the ground by some people on the staircase; as a result, his legs and arms were injured. D adds that he was pressed on the ground for half an hour and subsequently handcuffed in the back, and then detained at that location for around 2 hours. He did not know and still does not know who jumped on him and pressed him down. It was not until around 2:30pm that someone said “I am a police officer” and only then did D learn that the persons who had been holding him were police officers. D was later arrested at the same location for burglary and assaulting a police officer, and taken back to the police station. At no time were exhibits displayed on the staircase and shown to him (as in Photo 14 of Exhibit P5), nor had he ever been taken to any meter room or anywhere else in the 2-hour period.

ISSUE

12.  The defence stance is that the events in question were fabricated by the officers. D went to the Estate to work on the subject day, but he never went to the electric meter room, never had the key to the padlocks to the meter rooms, nor picked up any copper wire/plate. The defence case is that the officers had been briefed to catch the culprit behind the recent spate of burglaries of copper wires/plates at the Estate; they saw D at the staircase of the Estate and pounced on him (assuming wrongly that he was the culprit), injuring D; and subsequently made up the account to justify their actions.

ANALYSIS OF EVIDENCE

13.  The prosecution has the burden to prove the requisite elements of the offences beyond reasonable doubt. D has no burden of proof. Even if D’s evidence is rejected, I still have to consider the prosecution’s evidence and see if each of the charges has been proved beyond reasonable doubt.

14.  I bear in mind that if the account given by the D is or may be true, D must be acquitted.

15.  I have carefully considered the evidence of D. I find that he was not completely truthful when testifying about what happened on the day in question. In particular, he was evasive about what occurred during the 2 hours he claimed he was detained by the police at the staircase landing, and was unable to give any detail regarding how many and which officers had pressed him down on the ground, etc. However, I find that it is possible D may not have been lying when he testified that he did not steal any copper wire or assault any police officer. As such, D must be acquitted of both charges.

16.  Even though it is not necessary to deal with the prosecution evidence in light of the above finding, I would make the following observations.

17.  Regarding the first offence of burglary, the prosecution essentially relies solely on the evidence of PW2. However, I cannot accept his evidence for the following reasons.

18.  His account of his observation of D taking the copper wire from the electric meter room on 34/F is not believable:

(1)  He stated that Photograph 3 of Exhibit P5 shows the subject electric meter room and the smoke door through which he had observed the act (but the smoke door was closed at the material time and not opened like it is shown in the photograph). He stated that he looked through the small window of the smoke door and observed D opening the door to the electric meter room, then stepping his left foot inside the electric meter room while using his right foot to kick back and hold the door open; D then stooped down to pick up a coil of copper, all the while facing into the electric meter room (with his back to PW2);

(2)  However, according to the undisputed evidence (of PW4, and Photograph 3 of Exhibit P5), the door of the electric meter room opens out to the left. Once D pulls the door open, it would be unnatural for him to use his right leg to kick/hold the door open and use his left foot to step inside (it would be much more natural to use his left foot to hold the door open since the hinge of the door is on the left and it opens to the left). Moreover, in this manner of keeping the door open as depicted (with D’s right foot holding the door open, left foot stepping inside), the electric meter room door could only be slightly ajar and not fully opened, and PW2’s view would be fully blocked by the electric meter room door itself; PW2 would not actually be able to see D’s action at all (as to which foot he used to do what, and any act of stooping down to pick up an item from the ground). On top of that, PW2 claims he saw all this through the small window on the top right quadrant of a smoke door, which is even more incredulous. As such, the Court finds that it is not credible that PW2 could observe what he described, especially with the details he gave when he testified.

19.  PW1 was present when PW2 did the body search. Yet PW1 did not see PW2 finding the Key (P13)  from the trouser pocket of D. The Key (which opens the padlock to the electric meter room)  is a very important piece of evidence in the case. It is inconceivable that PW1 would forget or fail to pay attention to such an important event if it had occurred. Yet PW1 in his evidence-in-chief firmly stated he did not recognise Exhibit P13 and had never seen it before.

20.  I accept the defence submission that is indeed strange that PW2 (and PW1)  did not arrest D immediately upon intercepting him at Location 2. According to PW2’s evidence, D was carrying the copper wires on his shoulder in the cartoon bag at the time; he had only around 10 minutes before that observed D removing copper wires from the electric meter room on 34/F; the briefing that morning was to look out for suspects who were burglarising copper wires from electric meter rooms in the Estate. In essence, D was caught red-handed (according to PW2’s account). It thus defies common sense that PW2 did not arrest D there and then. (The reason given by PW2 in the box was that D had told him he was a repairman and was working on the premises so the police still needed to investigate before arresting D. However, it is clear that the copper wires allegedly found on D were cut coarsely and messily rolled up into coils (see Exhibit P3 and Photograph 43 of Exhibit P5); even if D was a workman / repairman at the Estate, that would clearly not justify him taking copper wire that had obviously been cut off without permission.)

21.  The evidence of PW2 and PW4 that they took D from 40/F to 20/F to try to open the padlocks of the electric meter rooms on each floor with the Key also defies logic. The alleged fact before them was that D had taken wires from 34/F – PW2 had observed this. The logical thing to do would be to go directly go to the subject meter room on 34/F (i.e., Location 1)  to try the Key; but instead they went to 40/F first and tried all the meter rooms down to 20/F.

22.  The evidence (of PW2 and PW4)  that the Key only was able to open the padlocks to the meter rooms on 34/F and 35/F (which purportedly had signs of copper wires having been cut from the walls)  and not the padlocks to the rooms on other floors is inconsistent with the evidence of PW5, the assistant engineering manager of Creative Enterprises. In fact, the prosecution case had all along been that the padlocks to all meter rooms of the building can be opened by the same key (which is kept at the security post of the building), and this is admitted as a fact in Exhibit P8. This discrepancy is material and irreconcilable.

23.  The fact that PW2 (and/or his colleagues)  took no photographs of the electric meter rooms of 34/F and 35/F as evidence is also extremely odd. PW2 claims to have seen D take copper wires from the 34/F electric meter room; he further claims that his subsequent sweep with PW4 and D revealed both 34/F and 35/F electric meter rooms had missing/cut copper wires from the walls. It defies logic that it was deemed unnecessary to take photographs of these electric meter rooms (which purportedly had cut wires and were the scenes of the crime)  but necessary to take photographs of irrelevant locations like the entrance of the building (Photograph 1 of Exhibit P5)  and the staircase landing between 35/F and 36/F (Photograph 9 of Exhibit P5).

24.  PW2’s evidence of his observation of D at Location 2 (right before D was intercepted)  is also not credible. He stated that he saw D leaning over the red suitcase (Exhibit P9)  through the smoke door shown at Photograph 13 of Exhibit P5. According to him, the red suitcase was placed on the top step as shown on Photograph 14 of Exhibit P5 (and P5(8A)). However, given the angle of the smoke door, and the size and location of the window on the smoke door, his view of the staircase would be blocked by the checkered wall (see Photograph 13); he should not be able to see the suitcase through the smoke door as claimed.

25.  I also accept the defence argument that there was no good reason for D to lay everything out in the open on the 34/F-35/F staircase landing to arrange/pack the copper coils into the red suitcase and risk his illegal activity being exposed when there was sufficient space (as admitted by PW2)  to do this in secret in the meter room itself (after cutting the wires from the walls or thereafter). PW2’s evidence that D chose to “mess with” (or tidy up)  the suitcase while carrying the very heavy cartoon bag containing 3 copper coils weighing a total of 7.66kg (see Exhibit P17, 2^nd Admitted Facts)  on his shoulder also does not make sense – the natural thing to do would be to place the heavy bag on the ground before doing so.

26.  The prosecution evidence relating to the first charge is therefore is not accepted by the Court.

27.  Given Charge 2 flows from events which happened as a result of Charge 1, the Court also cannot accept the prosecution case as regards the second charge. I would add that I find a number of aspects of the relevant evidence of PWs odd, including:

(1)  PW2 to PW4 had all testified that D had banged his head on the ground 3-4 times when he was subdued (after assaulting PW3), but the medical report of D (Exhibit P6)  shows no injury to D’s head at all;

(2)  PW3’s medical report (Exhibit P7)  records that he had complained of “falling while on duty” (instead of having been assaulted);

(3)  PW1 was not present when the incident happened despite being the officer in charge of the operation, having disappeared from the scene for hours for no good reason; and

(4)  PW4 who was tasked with guarding D when Charge 2 allegedly occurred not reacting immediately when the assault on PW3 purportedly happened.

28.  In light of the aforesaid, D is acquitted of both charges.