HKSAR v. CHRISTOPHER OKECHI NWOSU

DCCC 102/2021

[2021] HKDC 1076

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 102 OF 2021

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to both charges:-

(a)  Burglary;

(b)  Failing to surrender to custody without reasonable cause, contrary to S 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.

2.  Particular of offence of charge 1:-

“on 9 August 2020, in Hong Kong, having entenetred as a trespasser a building known as Fu On Mansion, no 178 – 192, Tung Chau Street, Sham Shui Po, Kowloon, stole therein 2 pieces of Notice”

Particular of offence of charge 2:-

“on 23 October 2020, being a person admitted to bail, without reasonable cause, failed to surrender to custody as he had been appointed by a court”

3.  It was not in dispute by parties that:-

(a)  On the 9 August 2020, the defendant torn away a piece of paper from the wall of the lift of Fu On Building;

(b)  The defendant failed to appear in West Kowloon Magistracy on 23 October 2020.

4.  The issues before the Court were:-

(a)  whether the defendant was a trespasser on 9 August 2020 of Fu On Building;

(b)  whether he had the intention of permanently deprived the Notice;

(c)  whether the defendant mistakenly believe that his cases in the West Kowloon Magistracy were being dealt with together/or he forgot the date amounted to “reasonable cause”.

5.  The Prosecution called 3 witnesses:-

(a)  PW1 was the caretaker of the building. He said that the defendant was not allowed to stay on the roof top of the building. The water tape on the roof top was locked and there was no water supply since July 2020. The defendant was not allowed to use water there;

(b)  Police had been called many times. The defendant was removed from the roof when the police came, but he returned to the roof in the evening. There was only one day shift caretaker in the building. When PW1 finished work at 6 pm, there was no night shift caretaker to take over his job;

(c)  On 9 August 2020, the defendant torn off the Notice from the wall of the lift and asked PW1 the meaning of its content. PW1 told him in Cantonese that he was prohibited from entering the building;

(d)  13 August 2020, the management arranged cleaners to remove his belonging.

6.  PW2 was the arresting officer of the defendant on 13 August 2020.

7.  PW3 was from the management company and said that the defendant was disallowed to enter the Fu On Mansion by the Owners’ Corporation.  If any one saw him in the building, 999 would be called to seek police assistance.

8.  The Notice was posted on 7 August 2020.  The photo on the Notice was taken by PW3 on the 6 August 2020 when the defendant was on the roof top.

The Defence case

9.  The Defence case was that he was a resident in that building from 2017 to 2019.  He could not return to his home because the police had “locked his residence”.  He explained to PW1 in Cantonese and with sign language that he had no place to stay.  He then asked PW1’s permission to stay on the roof top.  PW1 told him to “keep clean and tidy” while he stayed there.  He was a lawful squatter between 27 May to 13 August 2020.

10.  On 9 August, it was the first time he saw the Notice in the lift.  Since there was a picture of himself on the Notice, he removed it and kept it in his bag with the intention of seeking translation from his Chinese friend.  They planned to meet on the 14 August 2020.  After that he intended to return the Notice to PW1.  He had no intention of permanently deprived of it.

11.  He showed the Notice to PW1, but he did not explain anything to him.  He didn’t understand why his picture would appear on the Notice, he kept it for his friend to explain to him.

12.  As to Charge 2, he admitted that he did not turn up in West Kowloon Magistracy on 23 October 2020.  He attended court on the 25 September 2020 for another case, the case was adjourned to 23 October 2020.  As he had 2 cases in the same court, he thought that the 2 cases were “joined together”.

13.  The duty lawyer brought out 2 files and he was “confused by it”.  When he was interviewed in the duty lawyer office, there was no interpreter for him. But there was an interpreter for him in the court proceedings.

14.  He only found out that the 2 cases were not “joined together” when he went to the Court on 20 November 2020.

15.  He was given bail paper and the interpreter explained to him that which date he had to return to court.  The court clerk also explained to him the bail conditions and he knew that he must attend court on 23 October 2020.

16.  The defendant also said that he forgot the date to return back to the court. 

17.  When he was asked about paragraph 15 in the first amended admitted facts that there was no requirement for him to attend court for WKCC 3419/2020 on 23 October 2019.  His answer was he had nothing to say.

Assessment of Evidence

18.  When I assessed all the evidence before me, I borne in mind that it was the duty of the Prosecution to prove the case beyond all reasonable doubt.  As to Charge 2, all the defendant needed to prove that he had a reasonable cause was one of balance of probability.

19.  There were 2 matters which I have informed the parties that I would not draw any adverse inference against the defendant:-

(a)  the admitted facts included the transcript (P7)  of the proceeding in the West Kowloon Magistracy on 23 October 2020. In that transcript, it inadvertently revealed the criminal record of the defendant;

(b)  the fact that the defendant had another case in West Kowloon Magistracy.

Charge 1

20.  It was no dispute that the defendant was once a resident in Fu On Building from 2017 to 2019.

21.  The defendant did not deny that he had no place to stay and he returned back to Fu On Building.

22.  He told PW1 about his situation.  He believed PW1 allowed him or gave him permission to stay on the roof top and slept on the landing stairway of the building in the night.

23.  He had taken pictures on the 2 July 2020 because PW1 told him that one day he would call the police.  By taking these pictures he wanted to show the situation of the roof top, where he kept his belongings and where he slept.  That’s all he did on the roof top.

24.  This is an important piece of evidence to show that PW1 had already warned the defendant that police would be called one day.

25.  The question is why?  The answer was simple because the defendant was not allowed to stay on the rooftop.

26.  His evidence on one hand that PW1 would allow him to stay on the roof and on the other hand to call police one day, these 2 pieces of evidence, simply cannot sit together.

27.  PW1 and PW3’s evidence was very clear that the defendant was not allowed to stay on the roof.  PW3 said that the Owners’ Corporation had expressly disallowed him to stay.  While PW1‘s evidence was adamant that along he “objected the defendant’s presence in the building.”

28.  There were 2 occasions that police had been called before 9 August 2020 to remove the defendant.  PW1 said that the defendant would leave when the police came, but he returned in the night.

29.  There was no caretaker in the building to take up the night shift after PW1 called off at 6pm.

30.  That means the defendant could still enter the building illegally.

Water tape

31.  There was water supply on the roof.  However, since July 2020, the management locked the tape on the roof.  The whole purpose was to stop the water supply and the defendant had no water to use.

32.  July is a hot summer months and it was during the outbreak of the pandemic.  PW1 said that it was hot during day time and the defendant did not stay on the roof.  Hygiene is extremely important.  Without water supply, the defendant could not clean himself and wash his clothes.

33.  As to this point of the disconnection of water supply, the defendant did not say anything in his evidence.

34.  The decision to lock the water tape on the roof was to evict the defendant.  He was not allowed to stay in Fu On building.

6 August 2020

35.  PW3 prepared the Notice to inform all the residents in Fu On Building that the defendant was not allowed to enter the building.  If he turned up, called 999.

36.  PW3 took a picture of the defendant when he was on the roof top on 6 August 2020.  His picture was printed on the Notice.

37.  Clearly, between July and 6 August 2020, the management of the building had done all they could to stop the defendant from entering the building.

7 August 2020

38.  The Notice was posted on the wall of the lift and in the lift lobby.

39.  Anyone entered the lift lobby and the lift could easily saw the Notice.

40.  The intention of all residents and the Owners’ Corporation could not be any clearer that the defendant was not allowed to enter the building.

9 August 2020

41.  From the CCTV, I can see clearly that the defendant removed the Notice and was captured by the CCTV in the lift.

42.  The defendant waited for the lift to be opened and stepped into the lift just to remove the Notice and stepped back out.

43.  He did not press any button to take him to any floor.

44.  He was aware that there was a Notice being posted on the wall of the lift.  His whole purpose was to remove the Notice from the lift.

45.  He said that he could not understand the content of the Notice as it was written in Chinese.  He saw his photo on the Notice.

46.  He never said that he did not understand “999” which is the emergency number to call the police.

47.  It was common ground that the defendant had approached PW1 as to the content of the Notice but the versions were different.

(a)  PW1 told him that he was prohibited from entering into the building;

(b)  The defendant said that he did not say anything to him. In chief, the defendant said that PW1 said to him “Police, go, go, go!”.

48.  PW1’s evidence was very clear that the defendant was not allowed to squat in the building.  He knew what was his duties as a caretaker in the building.  He has to report to the management when he saw the defendant.  He posted the Notice on the wall of the lift on 7 August.

49.  When the residents, the Kwong’s brothers made a complaint to him about the defendant tearing off the Notice, he had to response to it.  I find it incredible that PW1 did not explain to the defendant as to the content of the Notice. Whether he understood what PW1 had said to him was another matter.

50.  The defendant said that he kept the Notice in his bag because he planned to meet a Chinese friend to explain to him the content of the Notice on 14 August.  His friend’s shop was closed between 9 August to 13 August.

51.  After that, he would return the Notice to PW1.

52.  It was really convenient for the defendant to say that he would return the Notice on 14 August.  On 13 August he was arrested by the police for an offence of theft of the Notice.  The management team also came to clear away all his personal belongings.

53.  When asked why he did not use the whatsapp function of his phone to send the pictures of the Notice to his friend, he said that his old Samsung phones did not have the whatsapp function.  But he used that old Samsung phone to take picture of exhibit D1.

54.  However, his current Samsung phone which was purchased a few months ago has the whatsapp functions.

55.  The defendant clearly is aware that the modern phones had whatsapp functions.  He knew that he could have taken the pictures of the Notice and send it by whatsapp to his friend.

56.  On the other hand, what he could do was to take picture of the Notice with the old Samsung phone.  He knew that the Notice did not belong to him.  He did not need to keep the actual Notice physically for his friend to explain to him.

13 August 2020

57.  The defendant was arrested by the police.  The management cleared away his personal items.

Permission from PW1 to stay in the building?

58.  The management had done all they could to remove the defendant, but the defendant would not leave.

(a)  They locked the water tape so that the defendant had no water to use;

(b)  PW3 went to the roof of the building to take a picture of the defendant on the 6 August 2020 for the preparation of the Notice;

(c)  On 7 August 2020, they posted a Notice on the wall of the lift to inform everyone of the building to call 999 if they saw him;

(d)  They called the police 2 times before they posted the Notice on 9 August 2020;

(e)  However, the defendant still came back in the night as there was no caretaker in the night shift;

(f)  The defendant used to be a resident of the building, he knew the layout of the building and he knew there was no caretaker in the night. He could simply came in to the building regardlessly;

(g)  PW1 was only an employee of a management company. He was not the owner or resident of the building. He had been informed that the defendant was not allowed to enter the building. He has no authority to give permission to the defendant to stay in any part of the building.

Charge 2

14 August 2020

59.  This was the first appearance of the defendant in West Kowloon court for this case as he was arrested on 13^th August 2020.

21 August 2020

60.  He was granted bail during a bail review hearing.

25 September 2020

61.  The defendant appeared in West Kowloon and the case was adjourned to 23 October 2020.  He agreed that he received the bail form. Both the court clerk and the interpreter had explained to him the bail conditions.

23 October 2020

62.  The defendant failed to turn up.

63.  The defendant explained that he mixed up with 2 cases because he had another case (WK 3419/2020)  in West Kowloon Magistracy.

9 October 2020

64.  This was his first appearance for WK 3419/2020.  It was adjourned to 20 November 2020.

Reasonable Cause?

65.  The defendant explained that when he was in the duty lawyer office, there was no interpreter for him and the duty lawyer took out two files.  He thought that the 2 cases were “joined together” and he was “confused about it”. Nonetheless, there is no evidence to suggest that he had sought any clarification from the court. 

66.  It was a self-induced misunderstanding.  The court clearly told him to come back on the 23 October 2020.  There was no one to tell him that the 2 cases were “joined together”.  At one point, he said that he forgot the date.

67.  It was clear that the defendant was fully aware and he understood that he had to attend court on 23 October 2020 for the present case.

68.  In court, he received the bail form on 25 September, 2020 that he had to attend court on 23 October 2020.  (exhibit P5)

69.  He had to take order from the court, not according to his wishful thinking.

70.  His other case which he appeared in court for the first time on 9 October 2020 had no mention of the present case.  (paragraph 15 of the amended first admitted facts refer.)

71.  The 2 cases had 2 difference set of case numbers in west Kowloon Magistracy:-

(a)  The present case was WKCC 2737/2020;

(b)  The other case was WKCC 3419/2020.

On each of his bail sheet, case number was clearly stated.

72.  I referred to the judgment of Laidlaw v Atkinson (1986)  Times, 2 August.  The facts were similar to the present case.  The defendant was confused as to his court appearance because he left of his legal documents to his solicitors.  His appointment to see the solicitors was later than the appointed day to appear in court.  The court held that the defendant could not satisfy the burden placed upon to prove on a balance of probability that that it amounted to a reasonable cause for his failure to surrender to custody.

73.  To this end, whether it was the defendant’s self-induced misunderstanding that the 2 cases were “joined together” or he forgot to attend court, he failed to prove that it amounted to a reasonable cause. 

74.  Having considered and analysed all the evidence before me, I accepted all the prosecution witnesses evidence to be honest and reliable.  I accepted their evidence.  I rejected the defendant’s evidence.

75.  I found the defendant was a trespasser at the material time when he took the Notice from the wall of the lift.  He kept the Notice and he had no intention of returning the Notice to PW1 or the Owners Corporation.

76.  Along the prosecution case only said one Notice was stolen by the defendant, of which the defendant did not deny.  There was no evidence of stealing a 2^nd Notice.

77.  To this end, I found the prosecution has proved beyond all reasonable doubt that the defendant had stolen one Notice with the intention of permanently deprived of it.

78.  I also found the prosecution has proved beyond all reasonable doubt that the defendant failed to attend West Kowloon Magistracy on 23 October 2020 without reasonable cause.

79.  The defendant is convicted of both charges.