HKSAR v. CHEUNG SIU SUM

DCCC 736/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 736 OF 2016

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REASONS FOR VERDICT

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Charge

1.  The defendant is facing one charge of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Chapter 210 of and section 159G of the Crimes Ordinance, Chapter 200 of the laws of Hong Kong.

2.  The particulars of the charge are these.  The defendant together with two other persons on the 28th day of March 2016, in Hong Kong attempted to enter as trespassers part of a building known as Shop C5 (“the shop”), Ground Floor, Hang Fung Industrial Building, No 2G Hok Yuen Street, Hung Hom, Kowloon, with intent to steal therein. 

Prosecution case

3.  Prosecution case as simply put is this.  Two other males (a foreigner and a short man) in an attempt to break into the shop and to try to steal from inside, went to tamper the roller shutter of the shop while the defendant was stationed across the street to look out for them.  However, some pedestrians walked by.  The two males were alerted and they aborted their actions.  They went to the direction of the defendant who was still standing across the street.  Three of them entered an alley and disappeared.  Police arrived and arrested the defendant in the vicinity.  There is no evidence whether the other two males were arrested at all.

Defence case

4.  On the other hand, the defence case when simply put is this.  The defendant was there alone on the street.  He had failed to find the right prostitute and in despair, he was waiting for a taxi to go back to where he parked his motorcycle.  He intended eventually to head home.  However, while waiting for a taxi, he noticed some other males across the street, ramming or banging on the door of a shop.  He first heard the sound or the bang of roller shutter, his attention was thus drawn to it.  The two males went to his direction and entered the alley and disappeared.  He saw some police vehicle arriving on the street.  In order to avoid trouble, he entered the alley too, but eventually ran into an uniformed policeman, the arresting officer, to whom he explained that he was there waiting to get a taxi to go to get back his motorcycle to ride home.  He did not know the two males and he was not part of whatever they were doing.

Witnesses and exhibits

5.  There are only three prosecution witnesses in the case:-

(a) the shop owner;

(b) the observing policeman;

(c) the arresting policeman.

6.  Defendant elects not to give evidence, but his counsel relied on his exculpatory statement in the cautioned interview. 

7.  The exhibits produced to the court are these:-

P1) one album of photos taken on the street;

P2) another album of photos taken on the street;

P3) one album of still pictures captured from a CCTV clip(P4);

P4) CCTV images in video clip format which captured what happened outside the shop at the material time, ie 2.35 am to 2.45 am;

P5) cautioned interview transcript;

P6) written agreed facts, primarily to deal with all the unchallenged evidence and exhibits;

P7) picture of a building at the scene where PW2, the observing policeman, testified that it was from where of the building he carried out the observation. He marked an X to his position which was on the 4th floor of the building;

P8) a backpack seized from the defendant when he was stopped by the arresting officer which contained the following four items;

P9) a regular foldable small multipurpose hand knife;

P10) a small eyeglasses screwdriver;

P11) a pair of white coloured gloves which the defendant explained in the interview were used for harnessing his motorcycle;

P12) a brown coloured hat.

Common ground

8.  It became clear during the trial that no direct evidence was really challenged by the defence.  The defence is only challenging the inference to be drawn from the primary facts.  At some time, defence challenged the observation of PW2. However, his evidence is actually not much more than the agreed CCTV images. Since the images are agreed, defence’s challenge to his observation is almost academic.  The primary facts are readily available from the undisputed CCTV images. 

9.  The setting of the scene is as follows.  The shop was on one side of the street. On the opposite side of the street sat a fire hydrant.  The hydrant was situated at the beginning of a side alley.  The end of the alley (where did the alley lead to) is not known; it could not be seen from the CCTV images. 

10.  It was not clear at all if the three males including the defendant came in the street by the same taxi, but a taxi did arrive there near the shop at around 2:36 am and three human beings alighted from it.  The taxi left. 

11.  The three beings walked past the shopfront towards the end of the street (away from the CCTV camera) and finally disappeared from the camera.

12.  About four minutes later, at about 2.40 am, two males (whom I referred to as the foreigner and the short man in the trial) and the defendant appeared from the end of the street at the opposite side near the hydrant.  They walked in close proximity but in succession, meaning one after the other.  They entered the alley. 

13.  They came back out from the alley where the defendant stayed near the hydrant and never crossed the street, whereas the other two males came out too but crossed the street to approach the front of the shop.

14.  The foreigner walked back to the defendant’s direction but came back to the shop after.  The foreigner banged on the shutter of the shop while the short man was standing next to him. 

15.  Some passers-by happened to walk towards the shop.  The two males left the shopfront, crossed the street, walked over to the defendant’s direction and stayed near the fire hydrant. 

16.  A flashing light siren police vehicle was arriving at around 2.46 am and the three males disappeared into the alley, apparently in succession again. 

17.  The arresting officer was searching in the vicinity and soon he saw the defendant walk to his direction.  The policeman stopped the defendant, cautioned him and the defendant said in gist that he was there alone, he failed to get the right prostitute and he therefore was waiting to get a taxi to his nearby motorbike because he wanted to go home.  Nothing incriminating was found in his backpack.

Consideration

18.  There are two obvious problems in the prosecution case.  One is what exactly the other two males were doing.  This court cannot tell for certain that they were attempting to break open the roller shutter to get inside the shop and to steal from it because they could have just attempted to damage the roller shutter. It could have been a case of criminal damage, not necessarily attempted burglary.  The fact that big noise was generated in the course is not consistent with the usual burglary scenarios where the culprits should tacitly prise open or master-key open the roller shutter lock, and then lift the roller so that they sneak in to steal.  What the two males were doing here were overt and drawing too much attentions.  Also, it is hard to believe that burglars expect to open locks barehanded.  There is no evidence of what was in possession of the two males at that time, any master key, plier or anything.

19.  If this court is not sure if the other two males were trying ultimately to steal from inside, the existing joint charge of attempted burglary against the defendant must fail and this is my ruling.

20.  The second problem in the prosecution case is this.  Even assuming that the two males were attempting to burgle and that the defendant knew of it (both of which this court is in fact not sure), this court asks: what role the defendant was playing apart from standing at across the street looking? 

21.  Upon the approach of the passers-by, apparently the defendant was still doing nothing, not alerting the two other males.  The defendant never crossed the street and never got close to the shop, what kind of help did or could he give to the other two males?  His mere presence could not make him part of the crime. 

22.  His avoidance of the police vehicle was highly suspicious, but at the same time he walked towards the uniformed policeman, the arresting officer, eventually.  He did not run away. 

Conclusions

23.  All in all, this court cannot be sure what crimes the other two males were trying to commit, if at all, and whether the defendant was any part of it.

24.  The benefit of the doubt should go to the defendant and accordingly I acquit him of the charge.