HKSAR v. SALEH AHMED FAROUK HASSANIN MEKKY

DCCC 722/2023

[2025] HKDC 713

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 722 OF 2023

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REASONS FOR VERDICT

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1.  The defendant is charged with the following charges:

(i)  Charges 1 to 4: Criminal Damage, contrary to sections 60(1)  and 63(2)  of the Crimes Ordinance, Cap 200, Laws of Hong Kong;

(ii)  Charge 5: Attempted Burglary, contrary to section 11(1)(a)  and 2(c)  and (4)  of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200;

(iii)  Charge 6: Going Equipped for Stealing, contrary to section 27(1)  of the Theft Ordinance, Cap 210; and

(iv)  Charge 7: Resisting 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 defendant pleaded not guilty to all the charges.  

PROSECUTION CASE

3.  At the trial, the prosecution called nine prosecution witnesses.  PW1 to PW4 are the informants of the four criminal damage incidents respectively that are the subject matters of Charges 1 to 4. PW5 is an employee of Civil Engineering and Development Department (“CEDD”)  working at the government facility that the defendant allegedly trespassed into and therefore his evidence concerns only Charges 5 and 6.  PW6 to PW8 are Police officers involved in the arrest of the defendant.  PW6 is the exhibit officer while PW7 is the arresting officer.  PW8 is the inspector-in- charge of the case and he was injured during the arrest of the defendant.  Lastly, PW9 was the officer who seized some fragments of the damaged statues at Hung Shing Temple (Exhibit P39).  He was also responsible to take over a towing tool/tow hook (Exhibit P38)  from PW6 and handed it to the Government Laboratory.

Charge 1

4.  The prosecution case can be summarized as follows.  On 16 September 2022, PW1, who was a volunteer worker of Kwan Tai Temple which was located at Castle Peak Road, Castle Bay, Tuen Mun, New Territories, stayed overnight at the temple.  At about 11:40 pm, while PW1 was resting inside the temple, he heard a loud glass-breaking sound.  He immediately watched the CCTV monitor and saw a male was walking away from the temple.  Later PW1 found that the two god statues standing at the two sides of the main door of the temple were damaged and the heads of the two statues were missing.  PW1 made a report to the Police and later provided the relevant CCTV footage (Exhibit P1)  to the Police.  The footage captured a strong-built male alighted from a dark colour private vehicle and walked towards the main door of the temple.  Shortly after some glass-breaking sound could be heard.  Then the same male re-appeared and walked away from the temple.  (Screen captured photos of P1 are produced as Exhibit P10).  The total costs of repairing the statues is HK$800.

Charge 2

4. PW2 was a village representative of Tung Lo Wan Village in Shatin, New Territories. There is a shrine next to the Village Office and inside there was an earth god statue. On 24 September 2022, PW2 found that the said statue was damaged and its head was broken (see Exhibit P18b). The matter was reported to the Police. Later PW2 watched the relevant CCTV footage (Exhibit P2)  and saw at the material time a male alighted a dark colour private vehicle and walked towards the direction of the shrine (Screen captured photos of P2 is produced as Exhibit P11). The value of the statue is estimated at about HK$1,500.

Charge 3

5.  PW3 was the temple keeper of Tin Hau Temple located at No 81 Ha Kwai Chung Tsuen, Kwai Chung, New Territories.  On 21 November 2022, PW3 found that two earth god statues and one incense burner which were placed on the altar outside the temple were damaged (see Exhibit 18c).  He later watched the CCTV footage of the temple at the material time (Exhibit P3)  and saw a dark colour private vehicle stopped outside the temple at about 23:56:35 on 20 November 2022.  Then a strong-built male alighted the vehicle at about 23:57:00 and walked towards the direction of the temple.  At about 23:57:35 the same male returned to the private vehicle and drove away. PW3 also watched the CCTV footage shooting from Kwai Chung Police Station which is located opposite to the temple (Exhibit P5)  and confirmed that the said footage did capture the direction of the temple at the material time.  Relevant screen captured photos are produced as Exhibit P12.  In the enlarged photo 7, it can be seen a person was leaning his/her upper body onto the altar.  The estimated value of the damaged statues was about HK$3,500.

Charge 4

6.  PW4 was a resident living in a flat on 3^rd Floor of Tung On Building which is located on the same street of Hung Shing Temple, Ngoi Man Street, Shau Kei Wan.  On 4 December 2022 at about 12:55 am, PW4 was in his flat and he heard some glass shattering sound coming from the direction of the temple.  He immediately looked outside and saw a male walked out from the entrance of the temple.  The male then got on a dark colour private vehicle which was parked outside of the temple and drove away.  PW4 was later shown some footages captured by the CCTV system of a nearby shop (Exhibit P8)  and he confirmed that what he described above was captured in P8 at 00:53:40 to 00:54:20.  Some screen captured photos of P8 are produced as Exhibit P13.  Police later investigated the matter and took some photos of the scene (Exhibit P18d).  It can be seen from Photo 5 that the god statues inside the temple were damaged.

Charges 5 and 6

7.  Charges 5 and 6 concerned a place called Area 137 which is a piece of government land located in Tseung Kwan O, New Territories (“the Site”).  According to PW5, the Site was divided into different areas that were used by different government departments.  The Site was a restricted area with opening hours from 0800 hours to 2200 hours.  Only staff and their vehicles with permit were allowed to enter the Site.  Those who wish to enter the Site without permit must register with the security office. Gates were installed at all driveway within the Site and the whole area was fenced off.  There were warning signs against trespassers along the driveway in the Site.

8.  CEDD operated a temporary construction waste sorting facility in the Site and there were some container offices installed nearby that were used by the staff (“the Offices”).  

9.  On 26 March 2023 at around 3:10 am, the defendant drove his private vehicle which was a black BMW bearing the registration mark XF 7166 (“the said Vehicle”)  and entered the Site.  At about 4:45 am on the same date, Police officers found the said Vehicle stopped in front of a closed iron gate near the Offices.  The door of the driver’s seat was opened and there was no one inside the said Vehicle.  PW7 then saw the defendant was walking near the Offices and was looking inside the Offices through a window.  At that time, the Offices were closed and there was no one inside. 

10.  When the defendant saw the officers, he began to walk towards the said Vehicle.  PW7 went forward to stop the defendant and asked for his identity.  PW7 asked the defendant why he was there.  The defendant gave different answers such as he was looking for friends, he was looking for a job and he lost his way etc. 

Charge 7

11.  During the enquiry, the defendant requested to return to the said Vehicle to get some personal belongings.  When the defendant got on the said Vehicle, he closed the door and refused to come out, despite repeated request and warning from PW7.  While he was inside the said Vehicle, the defendant shouted he would not get off the car and would not go to the Police station.  In the end, the officers successfully pulled the defendant out of the said Vehicle against his will.  Outside the said Vehicle, the defendant put up a fierce struggle and the officers had to use force to subdue the defendant and put him on handcuffs. 

12.  Immediate after the arrest, PW8 found his right ring finger was bleeding.  He was not sure exactly how he was injured but he was certain that he got the injury during the arrest of the defendant.

13.  PW7 later formally arrested the defendant for “Attempted Burglary”.  Under caution, the defendant voluntarily said, “I only come to find construction site job.” 

14.  Shortly after the arrest, PW6 conducted a search on the said Vehicle and found the following items (collectively referred as “the Tools”):

(a)  one towing tool/tow hook which was attached to the rear of the said Vehicle (Exhibit P38);

(b)  two iron pipes which were found inside the boot;

(c)  16 pairs of gloves which were found in various places inside the said Vehicle; and

(d)  two hammers, one screwdriver, one torch, two pairs of pliers and two saws which were all found in a rucksack placed on the rear passenger seats of the said Vehicle.

Admitted Facts

15.  According to paragraphs 29 to 31 of the Admitted Facts (Exhibit P19), Dr Wong Yau-nga of the Government Laboratory had examined the relevant CCTV footages of Kwan Tai Temple (Exhibit P1), Village Office of Tung Lo Village (Exhibit P2), Tin Hau Temple (Exhibit P3), Kwai Chung Police Station (Exhibit P5)  and a shop near Hung Shing Temple (Exhibit P8)  to try to identify the letters and numerals on the licence plate of the suspected private vehicles appeared in the footages.

16.  In gist, Dr Wong concluded that the letters and numerals on the licence plates of the suspected private vehicles appeared in the abovementioned footages could only be one of the following combinations:

AF 7160, JF 7160, XF 7160,

AF 7166, JF 7166, XF 7166.

17.  It was admitted in paragraph 31 of the Admitted Facts that the Police had conducted vehicle searches on the abovementioned licence plates and the result was that the vehicles using the licence plates of “AF 7160”, “JF 7160”, “XF 7160”, “AF 7166” and “JF 7166” did not bear any resemblance to the said Vehicle.

18.  Dr Chung Wai-wah, Government Chemist of the Government Laboratory, had examined the fragments of the damaged statue at Hung Shing Temple (Exhibit P39)  and the towing tool/tow hook (Exhibit P38)  seized from the said Vehicle.  According to his report (Exhibit P15), Dr Chung concluded that the tiny fragments recovered from P38 were found to agree in physical appearance, colour and elemental composition with the white ceramic fragments from P39.

DEFENCE CASE

19.  After the prosecution closed its case, defence made a submission of no case in relation to Charges 1 to 6.  After consideration, the court ruled that there is a case to answer on all Charges 1 to 7.  Concerning the defence case, the defendant elected not to give evidence and did not call any witness.

ANALYSIS OF EVIDENCE

20.  The court bears in mind the prosecution bears the burden of proof and the standard of proof is beyond all reasonable doubt.  The defendant does not have to prove anything.  The defendant elected not to give evidence and it is his right.  No adverse inference will be drawn because of his election.  The defendant is a person of clear record and a good character direction will be given accordingly.

21.  I have carefully considered the evidence of PW1 to PW5.  Their evidence is straightforward, reasonable and consistent with the relevant CCTV footages.  After careful consideration, I am convinced that they all have told the truth.  I find them to be honest and reliable witnesses and I accept their evidence in entirety. 

22.  I have also carefully considered the evidence of PW5 to PW9.  Their evidence is clear, detailed and straightforward.  They were unshaken under thorough cross-examination.  Their evidence is consistent with each other and there was nothing inherently improbable in their evidence.  After careful consideration, I am certain that they have told the court the truth.  I find them to be honest and reliable witnesses and I accept their evidence.

23.  The defendant elected not to give evidence and it is his right.  I note that under caution the defendant denied that he had committed any offence and gave an explanation as to why he went to the Site.  In his video-recorded interview (Exhibit P17)  the defendant also denied any involvement of any criminal offence.

24.  I will deal with Charges 1 to 4 first. First of all, based on the evidence of PW1 to PW4 and the relevant CCTV footages, the only and irresistible inference to be drawn is that on each occasion it was the person from the dark colour private vehicle captured by the CCTV who caused the damage to the god statues of the temples. 

25.  Secondly, according to the Admitted Facts, the said Vehicle is a black BMW and the photos of the said Vehicle (Exhibit P18g)  shows that the said Vehicle is actually a black BMW sports car with silver grille.  On the other hand, it was also admitted that the letters and numerals on the licence plates of the dark colour private vehicles captured by the CCTV could only be one of the six combinations as mentioned in paragraph 16.  Vehicle searches showed that the vehicles using the other five combinations did not bear any resemblance to the said Vehicle.  In other words, the other five vehicles were not black BMW sports cars with silver grille.  As all the suspected private vehicles captured in those CCTV footages were dark colour private vehicles (in some footages it can even be seen clearly the suspected private vehicles were black BMW with silver grille of identical model with the said Vehicle), it could only mean the suspected private vehicles in each of the CCTV footage were in fact XF 7166, ie the said Vehicle.  

26.  I now proceed to deal with Charges 1 to 4 separately.  Concerning Charge 1, the private vehicle captured by the CCTV (Exhibits P1 and P10)  looked almost identical to the said Vehicle.  They are both dark colour sports car and the grille looked identical both in shape and colour.  Together with the findings of Dr Wong, I am certain the private vehicle appeared in the footage was the said Vehicle.  The footage captured a strong built male in white top alighted the said Vehicle and walked towards the direction of the damaged statue.  The male in the footage bears a strong physical resemblance to the defendant.  I do not believe it is possible that there was a person other than the defendant who looked like the defendant and was able to use the said Vehicle to commit Charge 1.  Therefore, the only and irresistible inference to be drawn from the evidence is that it was the defendant who committed Charge 1.

27.  Concerning Charge 2, the private vehicle captured by the CCTV (Exhibits P2 and P11)  looked identical to the said Vehicle in colour, brand and model.  According to the findings of Dr Wong, the private vehicle could only be the said Vehicle.  The male came out from the private vehicle also bears strong physical resemblance to the defendant.  Again, I do not believe it is possible that someone looked like the defendant would be able to use the said Vehicle to commit the offence of Charge 2.  I am certain the person captured in P2 is the defendant and it was the defendant who committed Charge 2.

28.  I now turn to Charge 3.  The analysis is similar to the above.  Though the image of the relevant CCTV footage (Exhibits P3 and P12)  is not as clear as other footages, it can still be seen clearly at 23:56:38 to 23:56:42 that the dark colour private vehicle which stopped outside the temple looked very similar to the said Vehicle.  Together with the findings of Dr Wong, I am certain that the private vehicle captured in the footage was the said Vehicle.   Further, the male who came from the said Vehicle had the same built as the defendant.  Again, I do not believe there was someone who had similar built of the defendant and was able to use the said Vehicle in the middle of the night to commit the criminal damage of Charge 3.  The only and irresistible inference to be drawn is that it was the defendant who committed Charge 3.

29.  The evidence of Charge 4 is even stronger. In addition to the findings of Dr Wong, there is clear CCTV footage (Exhibits P8 and P13)  that captured the suspected private vehicle (from 00:53:20 to 00:54:20)  which bears all the resemblance to the said Vehicle.  Further, according to Mr Chung Wai-wah, Forensic Scientist of the Government Laboratory (his expert report was produced as Exhibit P15), some tiny fragments recovered from the towing tool/tow hook (Exhibit P38)  seized from the said Vehicle “was found to agree in physical appearance, colour and elemental composition with the white ceramic fragments” that came from the broken parts of the damaged god statues of Hung Shing Temple, ie the damaged properties of Charge 4.  Unless there is credible evidence to show otherwise, the findings of Dr Chung is very forceful evidence to prove that Exhibit P38 was the tool that was used to cause the damage to the god statues of Hung Shing Temple.  Putting the above evidence together, the only and irresistible inference to be drawn is that it was the defendant who used Exhibit P38 to commit Charge 4.

30.  Charges 5 and 6 can be dealt with together. In gist, the prosecution evidence is that the defendant was seen in the middle of the night wandering outside some offices in a restricted area of some government facilities looking inside the offices through the window.  In his car, there were some tools that could be used to break in the offices.  When being stopped by the Police officers, the defendant gave some extraordinary explanations as to why he was there.

31.  Defence raised a legal argument concerning Charge 5.  It goes like this: the particulars of Charge 5 said the defendant entered a building “known as Area 137” as a trespasser.  Defence argued, according to the evidence, Area 137 was not a building at all.  Instead, it was a vast piece of land occupied by different government facilities.  As one of the elements of burglary is “enters any building or part of a building”, the particulars of the charge failed to identify a building and therefore the charge is defective or the prosecution failed to prove an essential element of the charge.  

32.  After careful consideration, I do not agree that Charge 5 is defective or the element of “building” is not sufficiently made out.  The prosecution case is all along very clear.  The allegation is that the defendant attempted to enter the Offices as a trespasser.  Therefore, the words “part of a building” in the particulars of the charge could only mean the Offices and not Area 137, or the charge would not have been an attempted charge.  Of course, it would be clearer if the words “container offices” are added to the particulars of the charge.  However, it seems that the Offices were temporary structures and they may not have any formal description or door number.  That might be the reason why the prosecution opted to particularize Charge 5 as it is.  In any event, I believe the prosecution case on Charge 5 had been clear all along and I do not find the defendant would be in any way prejudiced by the lack of particulars of the charge.

33.  The crucial question for Charge 5 is whether the prosecution has proved beyond reasonable doubts that at the material times the defendant intended to enter the Offices “to do unlawful damage to the building or anything therein” as framed in the charge.  The prosecution evidence is that the defendant was seen outside the Offices looking inside.  It was in the middle of the night and the Offices were closed.  The reasons given by the defendant to explain his presence were simply not worthy of belief. However, the fact that the defendant told lies does not mean he is guilty.  The court has to look into all the evidence to see whether the only and irresistible inference is a guilty one. 

34.  Though there were some tools found in the defendant’s vehicle which was parked in the vicinity, the fact remains when the defendant was found outside the Offices he was empty-handed.  Apart from being seen that he was looking inside the offices through the window, there was no evidence that the defendant tried to open any door or window.  There is no evidence that he had touched any part of the Offices.  Other than the fact that he was present at the scene, there is simply no concrete evidence to prove that the defendant intended to enter the Offices.

35.  It might be true that the most obvious inferences to be drawn are that the defendant intended to enter the Offices to do unlawful damage or to steal.  However, without more evidence I cannot say for sure that those are the only and irresistible inferences.  The other inference is that the defendant did that out of curiosity.  The world is full of people who do things most people deem unreasonable or unexplainable. Entering a restricted area in the middle of the night and looked into an office may look unreasonable to most people.  However, that does not automatically mean anyone who does that has the intention to break in to do damage or to steal.  It all depends on the evidence.  The defendant told the Police something untrue does not mean he is guilty.  He might have said unreasonable things out of panic or fear. 

36.  Putting all the evidence together, there is no doubt that the defendant acted most suspiciously but it was not enough to prove to certainty that the defendant was attempting to enter the Offices to do unlawful damage or to steal.  I find the prosecution not able to prove Charge 5 beyond all reasonable doubts.

37.  The analysis of Charge 6 is similar.  The evidence is that the defendant went to the Offices in the middle of the night with a car full of tools that could be used to burgle the Offices.  To describe the defendant’s act as suspicious is an understatement.  However, following my analysis on Charge 5, suspicious as he might look, the evidence cannot prove to certainty that the defendant had the intention to enter the Offices to damage or to steal.  It follows that to use the tools to steal is not the only and irresistible inference to be drawn from the evidence.  The tools are all normal tools that could be used by any construction site worker.  At the material times the defendant was not carrying or holding any of those tools.  Therefore, there are other inferences that can be drawn from the evidence and the prosecution was not able to prove Charge 6 beyond all reasonable doubts.

38.  Lastly, I turn to Charge 7.  Base on the evidence I accepted, ie the evidence of PW6 to PW8, after PW7 declared arrest on the defendant, the defendant returned to the said Vehicle and refused to come out.  The defendant clearly knew he was under arrest and he did a series of act to resist a lawful arrest.  In the end, the officers had to pull the defendant out of the said vehicle with force and against his will.  During which the defendant put up fierce struggle and as a result PW8 suffered minor injury. 

39.  The defendant did not give evidence and even if he does, I can see no lawful explanation or defence to his act.  What the defendant did during his arrest obviously caused great difficulty to the officers in their execution of duty.  Base on the above evidence, I find the prosecution has proved beyond all reasonable doubts of all the elements of Charge 7.

CONCLUSION

40.  Base on the above analysis, my verdicts on Charges 1 to 7 are as follows:

(i)  Guilty on Charges 1, 2, 3, 4 and 7; and

(ii)  Not Guilty on Charges 5 and 6.