HKSAR v. SHAHID IMRAN YOUNAS

DCCC 246/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 246 OF 2015

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Reasons for Verdict
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1.  The defendant faces 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 private domestic premises on the 7th Floor, 202 Apliu Street, Sham Shui Po, Kowloon on 10 December 2014 as a trespasser and stole from therein. 

3.  The items he stole include some foreign currency, jewellery, watches, coins and other small personal items. 

The background and issue

4.  This is a straightforward case.  The home owners or tenants came home to find the defendant in their home having ransacked it and stolen items found in his bag.  He confronted them and there was a struggle when he tried to prevent a call being made to the police.  It then became an attempt to flee.  He managed to open the front door to flee but was subdued and pinned to the ground face down.  There he remained until the police arrived.

5.  The defendant denies he was an intruder and burglar.  He was an innocent passer-by.  He was attacked, assaulted and handed to the police wrongly accused of burglary. 

6.  The only issue and the crux of this case is the credibility of the witnesses.  Was the defendant the burglar or was he wrongly accused?

7.  The prosecution called three witnesses who saw the defendant in the house, physically struggled with him and subdued him when he tried to run away.  They were sure the intruder in the house was the man they pinned to the ground whilst waiting for the police. 

The prosecution case

8.  PW1 and PW2 are husband and wife who lived in the material flat.  They lived there with their children.  On 7 December 2014 a fire broke out in their kitchen which burned down their back door and caused smoke damage throughout the flat.  They had no water or electricity as a result of the fire.  They had to move out temporarily. 

9.  On 10 December 2014, they returned at about 10 am with a friend, an electrician and a plumber, who was going to help them fix up the flat, PW3.

10.  PW4 and PW5 were the arresting police officer and the exhibits officer respectively.  Their evidence was not challenged.

11.  PW1 to PW3 gave very similar evidence supporting each other.  They met and entered the flat at about 10 am.  They entered through the front gate and door using their door keys.  They closed the door behind them.  PW2 noticed there were candles lit in the living room, obviously not left there by them.  They all then saw a male walk out of the master bedroom towards them down the corridor.   

12.  There is a sketch of the flat, P22 and 22A. 

13.  The male, the prosecution say, is the defendant, spoke to them in Cantonese.  Both PW2 and PW3 said he said to them, “Who are you?”  PW3 recalled he said, “What are you doing here?”  PW2 recalled he said, “Have you come here to steal?”

14.  PW1 and PW3 recalled he said something to the effect of sharing the spoils, sharing the stolen items in Chinese, “分贓.” 

15.  PW2 went to call the police on her mobile, and the defendant came at her to prevent her from making the call.  PW1 and PW3 immediately went to protect PW2 and prevent the defendant from reaching her. There was then a struggle between the three men inside the flat.  It was a case of pushing and shoving and an attempt to pin the defendant down.

16.  PW1 fell over during the struggle, and with his feet against the door prevented the defendant opening it.  However, after he got up, the defendant managed to open the door and the gate to obviously try and escape.  PW1 and PW3 were out of breath and tired from the physical struggle with the defendant but managed to keep hold of him as he opened the door.  The defendant slipped and fell over at the threshold of the door.  The two men then successfully pinned him down to the ground face down.  

17.  After he was subdued, the police arrived to see him in this same position on the ground and arrested him.  

18.  PW1 and PW3 are absolutely sure the man they pinned to the ground and handed over to the police was the intruder they found in the flat.  This is despite the lighting being dim and not very bright.  They never lost sight of him nor did they let go of him as they grappled each other. 

19.  All three witnesses were sure the intruder was of South Asian descent.  Not one could recognise the intruder during the course of the trial.  PW1 said that South Asians all look the same to him.  He was nonetheless sure the man on the material day had no facial hair, glasses and was of a muscular build. 

20.  PW3 sustained an injury to his face during the struggle but was not aware of it until the police pointed it out.

21.  The witnesses were not aware if the defendant had sustained any injury, but his blood was proved to be smeared on the door of the premises, Exhibit P23; it is the forensic scientists report. 

22.  It was put to these three prosecution witnesses that the defendant was not the intruder they saw and fought with inside the premises.  It was put to them that the intruder must have escaped because the defendant was an innocent bystander who walked past PW1 and PW2’s home going downstairs when he was jumped upon, assaulted and pinned to the ground.  He was mistaken for the burglar either intentionally or accidentally.  However or whyever it happened, he was just an innocent passer-by.  They grabbed the wrong South Asian male.  

23.  All three prosecution witnesses denied the defendant’s version of events put to them.  All three witnesses were sure the defendant carried a bag across his chest.  PW3 even tugged and pulled on it when they were trying to stop him fleeing the scene.  PW1 said when they pinned the defendant to the ground, some items fell out of the bag.

24.  Photographs 4, 5 and 6 of Exhibit P21 show some personal items and banknotes strewn across the ground by the front door. 

25.  After the police arrived, this bag was searched and personal items belonging to PW1 and PW2 taken from various places in their home were found in it and on the ground.  PW1 and PW2 said their flat and bedroom showed signs of ransacking, items searched through and thrown to the ground. 

26.  Photographs in Exhibit P21 clearly show a mess made akin to ransacking throughout the flat.  Photograph 4 of Exhibit P20 shows the witnesses’ stolen belongings, and photograph 5 and 6, the defendant’s bag.

27.  The admitted facts are Exhibit P24.

28.  PW4, the arresting officer, said he received a police report at 10.17 am and arrived at the building at 10.22 am.  When he got to the flat on the 7th floor, he saw the defendant face down on the ground outside the door.  Two men were sat on top of him and a female stood next to the three men.  His legs and arms were pinned down. 

29.  PW4 identified the defendant as the man who he subsequently arrested.  He said the defendant had sustained some injuries and he later took him to hospital for treatment.  At no time did the defendant tell him he was a victim of mistaken identity or an innocent passer-by.  He was not emotional when he was arrested.  However, later in the ambulance and whilst at the hospital, the defendant swore a lot in English, Chinese and a foreign language. 

30.  PW5 was the exhibits officer who accompanied PW4 to the premises in the response to the police report made.  PW5 seized items PW1 and PW2 identified as theirs.  Items from the bag the defendant was carrying and items he dropped on the ground during the struggle.  These include three Canadian $100 notes and a wallet.  He seized the bag of the defendant as well.

The defence case

31.  The defendant elected to give evidence.  He went to that particular building that morning because a friend had told him there may be work to be found there.  He went to the rooftop and saw no one.  He walked back downstairs.  When he walked past the flat, 202, on the 7th floor, suddenly some people came from behind him and assaulted him.  He said two males hit him until he was “a little unconscious”.  He did not know the two men nor did he defend himself.  He did not tell the police about the unprovoked attack on him as a victim because he was “injured too much.”

32.  He described the two men attacking him, one hit the front of his knees with a hammer and the other sat on top of him pressing his neck.  At that time he was face down on the ground.

33.  He gave evidence that he did not enter the premises as a burglar and steal from within.  He did not own the bag containing PW1 and PW2’s personal items; it was not his.  He denied he lit the two candles found in the living room after he entered the premises. 

My findings

34.  The prosecution must prove all elements of this charge beyond reasonable doubt.  The defendant has nothing to prove.  There is no issue of law here. 

35.  As I identified earlier, the only issue is the credibility of witnesses. 

36.  If I find the prosecution witnesses are credible and truthful, then their evidence prove the defendant is the burglar the homeowners caught red-handed in their home with their possessions in his bag. He tried to escape when he realised he had been caught in the act.

37.  I considered the evidence of the defendant and found it inherently improbable.  I considered the submissions made and had no hesitation in rejecting the defendant’s evidence.  It is not credible.  I find it inherently improbable that he was the victim of a mistaken identification; randomly or coincidentally picked and framed for a burglary.

38.  The fact is I believe the burglar was caught red-handed and apprehended at the scene.  He did not escape.  I do not believe the defendant was an innocent passer-by who was attacked by PW1 and PW3.

39.  It is not credible that if the defendant was a victim, he did not declare his innocence to the police either at the scene or at the station.  His explanation he was too injured to tell the police is blatantly untrue.  If he was a victim, he would have naturally told somebody. Even his account of the unprovoked attack on him was far-fetched.

40.  He agrees he was face down on the ground yet says one of the males was hitting the front of his knees with a hammer.  When asked how that was physically possible, he said he did not know how.

41.  I reject the defendant’s evidence in its entirety.  Even though that is my finding, that does not determine the matter in favour of the prosecution.  As I said earlier, the defendant has nothing to prove.  However, I do find the prosecution witnesses’ evidence collectively reliable and credible. 

42.  PW1, PW2 and PW3 gave evidence that supported each other.  There are no discrepancies that are so serious that I doubt their credibility.  They are sure the defendant was the burglar.  They did not lose sight of him or let him go before he was subdued and handed to the police.  I am sure this is the truth.  There is no chance of a wrong identification. Identification is not an issue here.

43.  I watched the witnesses’ demeanour in the witness-box and found them genuine and not prone to exaggeration.  I accepted PW1, PW2 and PW3’s evidence entirely. 

44.  The two police officers’ evidence was not challenged and I accepted it as the truth. 

45.  To conclude, in reaching my verdict, I carefully considered the submissions made and the evidence presented.  I rejected the defendant’s inherently improbable and unbelievable evidence.  On the other hand, I found the prosecution witnesses reliable and credible.

46.  The prosecution can prove beyond reasonable doubt the defendant entered the premises which at that time was empty having suffered fire damage.  The back door had burned away leaving it easy for a burglar to enter without difficulty.  I am sure the defendant entered the premises and stole from within items belonging to and identified by PW1 and PW2.  They were either found in a bag the defendant had been carrying or loose on the floor where the defendant was pinned down to the ground just outside the flat.  They had obviously either dropped out of his bag or his person.

47.  Defendant, please stand up.  I am sure the defendant was caught red-handed by the homeowners who he mistook for a fellow criminal or burglar.  Accordingly, the defendant is convicted as charged.