HKSAR v. SO TAT YAN

DCCC711/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 711 OF 2012

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to one charge of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.  The particulars are that the defendant entered, as a trespasser, a village house in Tai Po on 29 June of this year, 2012 and attempted to steal therein. 

Prosecution Case

3.  The prosecution say the defendant was seen climbing into a village house under renovation in Kau Lung Hang Village, Tai Wo Service Road East, Tai Po at about 3 pm on 29 June 2012.  There was a typhoon signal hoisted at that material time and PW1, the eye witness, was at home. From his home PW1 saw the defendant put his rucksack down on the ground before opening a window and climbing in.  PW1 then called the police and arranged to meet them at the school in the village.  He had to leave home to walk there. While waiting for the arrival of the police he saw the defendant walk by so he followed him at a distance.

4.  He spoke to the police via a mobile phone as he kept the defendant under observation.  He says he saw the defendant look into other houses he passed.  PW1 sent another villager to locate the police who were on their way into the village.  By then he and the defendant were in the adjacent village.  Eventually he saw the police in front of the defendant and alerted them to the fact the defendant was the suspicious man who had climbed into the village house.

5.  The police stopped the defendant and questioned him.  His rucksack was searched, he was arrested and cautioned.  Under caution he admitted climbing into a house to see if there was anything to steal.  He did not find anything to steal.  He carried a new blue, red and white nylon big bag in his rucksack in case he found anything worth stealing; he could use the bag for carrying such items.

6.  In addition to the evidence of the eye witness the prosecution also rely on a signed post-recorded statement of these admissions, P6, in the arresting officer’s notebook.  In addition there was a video recorded interview conducted on the following day, exhibit P8, where, under caution the defendant makes further incriminating admissions.  He describes why and how he ended up in this Tai Po village from his home in Sham Shui Po.  He describes entering a village house with intent to steal if he found anything of value.

7.  Certain facts were admitted in Exhibit P1, such as, the village house’s full address, photographs, (P2), the defendant’s identity and possessions at the material time. 

The defence case

8.  The defendant challenged the voluntariness of both the video record of interview and the post-recorded statement.  He denied making any admission at the scene, whether or not under caution.  In fact, his evidence was that he was not cautioned.  The defence case is that he has been framed for this charge of burglary.  He did not enter any home occupied or unoccupied.  He did not climb through anyone’s window.  He did go behind a house to urinate in or near some shrubs or bushes.  He went to this area on his day off to look for an old-age home suitable for his very elderly mother.  He was told there were some in this area that were spacious with good living conditions and cleaner air than those in town.  He was walking around when stopped by the police and confronted by a villager.  The defendant elected to give evidence in the special and the general issue. 

The law

9.  The prosecution has a duty to prove beyond reasonable doubt that the defendant did commit this offence.  The defendant has no duty to prove his innocence or duty to prove anything.  The elements of the offence are very obvious; the prosecution must prove he entered any part of a building as a trespasser, without permission, and attempted to steal from therein.  The fact he did not steal anything is not relevant.  The offence is complete if he had that intention, mens rea and did enter, the actus reus.

My findings

10.  As I have said the prosecution relies on PW1’s evidence as well as the confession by the defendant.  The defendant challenged the voluntariness of the post-recorded statement and the video record of interview.  The defendant denies making any oral admission under caution at the scene.  He denies he was arrested by PW2 as she alleges, not did she or any other police officer caution him at the scene.  He made no admission there.  His evidence was that he was stood out in the rain during the stop and search; he got soaked through. 

11.  All police officers agreed it was raining and they were out in the open countryside.  They had to seek shelter some distance away under a balcony.  The defendant said he did not feel well later as a result of his soaking.  He was promised the methadone by a male police officer at the station if he signed PW2’s notebook.  This post-recorded statement in this notebook was not read to him or by him.  He was ignorant of its content and signed out of desperation and in urgent need of being taken to consume methadone.  He was told the matter was not serious. 

12.  The next day he only agreed to repeat, under caution, and video recording, the answers taught to him by PW5 prior to the interview beginning because he was promised bail.  He was induced and coerced into signing records that were not accurate nor made voluntarily.  The defence counsel submitted written objections to the admissibility.  By way of the alternative procedure I dealt with the admissibility of Exhibit P6 and P8 and the oral admission. 

13.  I heard evidence from PW2, the arresting officer, WPC9650, PW3, the exhibits officer, PW4, SGT4767 and PW5, DPC6992, the statement taker.  I was satisfied beyond reasonable doubt that these officers were telling the truth.  There were no material discrepancies nor none so serious to cause me to doubt their credibility.  PW2, in particular, gave evidence very naturally in a relaxed manner and was not ruffled by cross-examination and allegations of impropriety on her part. 

14.  She recalled how she came face to face with the defendant and PW1 behind the defendant at a distance, shouting at them to get their attention.  When PW1 told the police the defendant had climbed into two homes she stopped and intercepted the defendant revealing her identity.  After a few questions she declared arrest on the defendant and cautioned him.  She had her notebook at the ready and recorded down his admissions almost simultaneously.  She explained a contemporaneous record was an accurate record.  I believed the defendant, beyond reasonable doubt, made those oral admissions and made them in a voluntary manner making them admissible.

15.  The sole issue to be determined in relation to each of the exhibits P6 and P8 is the question of voluntariness.  If the prosecution can prove beyond a reasonable doubt on the whole of the evidence the interviews were voluntary, the records of them are admissible.  I bore in mind if, for any reason they were not voluntary the records were inadmissible. If the circumstances in which they were made were oppressive they must be regarded as having been made involuntarily.  There is also a further safeguard that a record of voluntary interview may still be excluded if it was obtained by unfairness or trickery. 

16.  This case falls four square within the description of a case referred to in the authority of R v Wallace & Fuller [1997] 1 CR App R, 396 where the Privy Council noted:

the trial judge was faced with an irreconcilable conflict of evidence between police officers and defendants turning on credibility alone. No principles of law were in issue and there was no discretion to be exercised. The only question was whether the judge believed one set of witnesses or the other. His ruling left the answer in no doubt. Simply to announce that he accepted the account given by the officers and found the appellant’s story unworthy or credit would not have advanced, in that case, an appeal. Their Lordships could see nothing to recommend such a course and good reason not to follow it.

17.  Wallace has recently been adopted by the Court of Appeal in Hong Kong in HKSAR v Okafor, Peter Eric Nwabvnwanne CACC473/2001. 

18.  In the circumstances all that is necessary for me to say is that after careful consideration of all the evidence relating to the manner and circumstances in which these interviews were conducted, including the allegations made by and the evidence of the defendant, and having due regard of the 1992 rules and directions on the questioning of suspects, I was satisfied as to the voluntary nature of each of them, and further satisfied that there were no grounds upon which I should exercise my discretion to exclude the records.  They were subsequently and consequently admitted into evidence.

PW1

19.  He was the eye witness, an independent witness who did not know the defendant.  He grew up in this village and worked as a decoration worker.  He believed the defendant was a burglar and called the police.  He had no reason or motive to frame the defendant.  The defence counsel quite rightly dissects his evidence and catalogues his discrepancies.  The most serious being whether or not he saw the defendant enter via a window of one or two houses.  He contradicts himself in-chief and in cross-examination. Because of this confusion he was re-called to clarify this but ultimately his evidence was peppered with self contradictions.  I don’t intend to set out his discrepancies, they were blatant.  He could not make up his mind whether he saw the defendant climb into one or two houses.  His evidence, on the whole, is not reliable.

20.  If the prosecution only had his evidence to rely on it would fall far short of sufficient to prove the offence beyond reasonable doubt.  However, it is not the only evidence against the defendant.  What I do take from PW1’s evidence and believe is that the defendant did catch his attention and he put the defendant under observation and, as a result of what he saw, he called the police.  The police arrived and PW1 pointed out the defendant as the man who climbed into a house.  I do not believe PW1 framed the defendant, nor do I believe this is a case of mistaken identity.  If he had seen the defendant urinating in a bush, he would not have called the police.

21.  The police answered a report of criminal activity.  When they questioned the defendant he admitted that criminal activity.  What he admitted corresponded to what PW1 said he saw. Despite PW1’s contradictions and over-zealous evidence, his reason for calling the police I accept as the truth.  Ultimately the prosecution, after reviewing his evidence, and the evidence obtained during the course of their investigation, charged the defendant with one count of burglary, not two.  

22.  The house he admits entering is seen in the fourth photograph of Exhibit P2, the agreed bundle of photographs.  It is the first house in the photograph to the right of that photograph in front of another newly built house.  It was the defendant’s evidence he went behind this house, between the two houses, to urinate in the bushes there.  Photograph 6 and 7 depicts the window at the back of that house, PW1 said he climbed through.  Now, in his records he described climbing through a window. Photographs 5 and 8 show that the house was not occupied, a new build and empty but for some scrap construction waste or material of little value.  One look from outside would have revealed there was little of value inside.

23.  I found the police officers’ evidence credible and reliable where both the evidence of the special and the general issue was concerned.  I accepted the arrest of the defendant was made by PW2.  I accept it was raining but the police and the defendant did walk to a nearby house to seek shelter.  I am sure he was arrested because he admitted entering a house with intent to steal.  I do not find any procedural impropriety before, during or after his arrest. 

24.  On the other hand I rejected the defendant’s evidence.  I am aware that even if I rejected his evidence, I had to be sure of the prosecution witness’s credibility independently.  As I have just said, I am sure.  The defendant went from Sham Shui Po to Tai Po and then walked a significant distance into rural remote villages where he was arrested.  He said he went and walked on the off chance he would come across an ideal old-age home for his elderly mother.  He had no address or idea whether there were any such old-age homes established.  He had just heard that this was the case.  This hunt which can be described as akin to searching for a needle in a haystack is not believable or likely.  His reason given in oral evidence for being in this village was not accepted or credible.  I rejected this evidence.

25.  I found the prosecution witness’s evidence reliable. I am sure the defendant admitted the offence under caution and then confirmed it when he signed the post record of interview.  I am sure he made a further admission the next day in the video record of interview, P8.  From these admissions I find the prosecution has sufficient evidence to prove beyond reasonable doubt all required elements of this offence.  Accordingly the defendant is convicted as charged.