HKSAR v. YEUNG WING HONG

DCCC 925/2019

[2020] HKDC 740

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 925 OF 2019

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REASONS FOR VERDICT

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CHARGE

1.  The defendant is charged with one count of ‘Burglary’.  It is alleged that he having entered as trespasser a meter room on Floor 33 of Chui Shue House Lei Muk Shue Estate on 7 July 2019 stole nine metallic clips therein. Later, the charge is amended to accuse he entered the place as trespasser with intent to steal therein.

2.  The defendant pleads not guilty to any burglary but admits to the theft of a backpack and its contents.  He claims he found the backpack at the doorway of the meter room and appropriated it out of greed.  Then he went into the meter room to urinate.  When he came out, he was intercepted by the security guards.

3.  The defendant’s lesser plea is not accepted by the prosecution.

PROSECUTION CASE

4.  Prosecutor calls four witnesses: PW1, PW2, PW4 and PW5 on the list.

5.  There are exhibits P1-P14.

SECURITY GUARDS

6.  PW1 (Mr. Leung) and PW2 (Mr. Wong) were security guards on duty in Chui Shue House on 7 July 2019.

7.  PW1 checked the various floors of the building between 12:15 am and 1:30 am. Everything was in order then.

8.  At about 6:13 am, PW1 patrolled again and came to the meter room near Staircase No 2 on Floor 33.  There was light inside the room.  The door was closed.  PW1 could feel some vibration on the door. He believed someone was inside so he went down to inform his colleague PW2.

9.  The two security guards went up to Floor 33 and waited outside the meter room. After a few minutes, at around 6:20 am, the defendant came out of the room. He was carrying a backpack on his back (Exhibit P5), a stool (Exhibit P6) in one hand and a pair of gloves (Exhibit P7) in the other.

10.  PW1 asked the defendant why he came from there. The defendant said he got the stool back.  The security guards prevented him from leaving and called the police.

11.  PW1 later inspected the meter rooms on Floors 29-34.  He found the doors were all prized open.  The copper lightning conduits in the rooms had gone missing. 

12.  There were originally three conduits in each meter room (marked orange in photo P11) running from floor to ceiling.  Each was secured to the wall by three metal brackets.

13.  It can be seen from photos P9 (16-20) that of the nine brackets in the meter room on Floor 33, one was of square shape while the other eight were of stadium shape. The installation was the same in the other meter rooms.

14.  A metal bracket consisted of two parts: the base and the cover. (The cover is what the prosecution call ‘metallic clip’ in the original charge.) The base was screwed to the wall.  It had a groove to hold the conduit in place. The cover would be screwed to the base.  In order to take away the conduits, the bracket covers must be removed.

15.  PW1 says he saw three to four stadium bracket covers lying on the ground of the meter room on Floor 33.  He does not know if the police seized them or not.

16.  PW1 says he had told the police that the valuable conduits were missing from the meter rooms on Floors 29-34.  The police could not find them anywhere.

17.  The other security guard PW2 merely helped PW1 to intercept the defendant.

POLICE OFFICERS

18.  PW4 (PC25699) and PW5 (DPC19018) came to the scene at different times.

19.  PW4 arrived at 6:46 am.  He arrested the defendant and seized the backpack (Exhibit P5).  Inside the backpack, there were sixteen bracket covers (Exhibit P2), one screw (Exhibit P3) and one screwdriver (Exhibit P4).

20.  PW4 arrested the defendant for burglary. The defendant said he had not done it.

21.  PW4 says he could smell nothing special inside the meter room.  He did not pay particular attention to the floor.

22.  The other officer PW5 arrived much later at about 9:15 am.  He found all the bracket covers in the meter rooms on Floors 29-34 had been removed except for Floor 34, where three remained on the wall.

23.  On Floor 32, there were eight bracket covers on the ground of the meter room (Exhibit P12); seven on Floor 31 (Exhibit P13) and seven on Floor 30 (Exhibit P14).

24.  There were no bracket covers found on Floors 29, 33 and 34.

SEARCH OF THE DEFENDANT’S FLAT

25.  The defendant lived on Floor 18 of the building. The police searched his flat. They found no conduits, no bracket covers like those of Exhibit P2 and no screws similar to Exhibit P3. On a chair outside the bathroom/toilet, there were two spanners, a pair of pliers and three screwdrivers [see photos P9(21-22)].

MID-STAGE

26.  Defence Counsel has no submission to make.  I find the defendant has a case to answer.

THE DEFENDANT’S EVIDENCE

27.  The defendant says he worked full time in a finance company and part-time at Container Terminal No. 8 as checker. On 6 July 2019 (Saturday), he worked in the finance company in the morning.  After he had got home, he fixed the shower with some tools.  Then he laid the wet tools on the chair to dry out. 

28.  Later, the defendant went to work at the Container Terminal from 11:00 pm till around 5:00 am the next day.  Then he went back to Chui Shue House. 

29.  The defendant says a female friend living at Room 3317 had given him a message.  The two were to meet at her home.  He thus took the lift from the Ground Floor straight to Floor 33.  He felt the urge to urinate. When he came to the meter room, he wanted to piss inside.  There was a stool lying at the doorway, keeping the door ajar.  Underneath the stool were a pair of gloves and a backpack.  The backpack was quite new.  He became greedy and wanted to take it.  He did not look into the backpack but was minded to appropriate whatever in it that would be useful. 

30.  The defendant picked up the things at the doorway and went inside the meter room. He closed the door to piss.  Then he checked his phone for the female friend’s message again.   

31.  When the defendant left the room, he was carrying the backpack on his back and holding the gloves and the stool with the intent to throw those two things away.  The security guards intercepted him. They would not let him go. He argued with them and suggested to them that they should call the police.

32.  The defendant has a clear record.

FINAL SUBMISSION

Prosecution

33.  Someone or some people had trespassed into the meter rooms on Floors 29-34 and stolen the lightning conduits.  Those conduits were not found in the defendant’s flat or at all.

34.  The prosecutor cannot be sure if the defendant was involved in the stealing of the conduits but he is adamant the defendant entered the meter room on Floor 33 as trespasser with intent to steal therein and the defendant actually took nine bracket covers in that room.

35.  The prosecutor asks the court to find PW1 is mistaken when he says there were three to four bracket covers on the ground of the meter room on Floor 33. The prosecutor says the defendant must have put all the nine bracket covers into his backpack and the remaining seven came from the other meter rooms.

36.  There were eight bracket covers lying on the ground of the meter room on Floor 32, seven on Floor 31 and seven on Floor 30. The prosecutor postulates those bracket covers were of poor quality so the defendant did not take them.

37.  The prosecutor asks the court to reject the defendant’s version that he went into the meter room on Floor 33 to urinate and picked up the backpack only at the doorway.  He says the defendant had stayed inside the room for some minutes.

38.  The prosecutor submits that the display of tools at the defendant’s home reveals the defendant had taken one screwdriver (Exhibit P4) to burgle into the meter room while leaving behind the other tools at home. 

DEFENCE

39.  The defendant says he picked up the backpack at the doorway of the meter room on Floor 33 when he was about to go inside to urinate.  Defence Counsel says the defendant should be acquitted of burglary if his testimony is true or might be true. He should instead be found guilty of stealing the backpack and its contents.

40.  Counsel asks the court to note there were sixteen bracket covers inside the backpack.  If the defendant were minded to steal such things from the meter room, why would he only take some from Floor 33 and leave three to four bracket covers on the ground?  And there were many more (twenty-two altogether) left on Floors 30-32.

41.  As to the screwdriver found in the backpack, Counsel submits there is no evidence to show it had been used to damage the locks of the meter rooms.

42.  Counsel says the defendant had only stayed inside the meter room on Floor 33 for several minutes, a time too short for him to do all the unscrewing and dismantling.  There is no evidence the defendant was in joint effort with others.

43.  Counsel says it is obvious someone or some people else had entered the meter rooms to remove the bracket covers and had stolen the conduits.  Those copper strips were not found at the defendant’s home. 

44.  Counsel points out the defendant has a clear record.

DISCUSSION

45.  It is not in dispute that the defendant came out of the meter room on Floor 33.  He was carrying the backpack on his back and holding a pair of gloves in one hand and a stool in the other.  Inside the backpack, there were sixteen bracket covers (two square ones and fourteen stadium ones), a screw and a screwdriver.

46.  The prosecutor’s theory is that the defendant entered the meter room on Floor 33 with intent to steal therein.  He had used the screwdriver to unscrew all the nine bracket covers from their bases on the wall.

47.  There were sixteen bracket covers in the backpack.  The prosecutor says nine must have come from Floor 33 and the remaining seven were from elsewhere.

48.  That morning at about 1:30 am, PW1 finished his first patrol in the building.  Everything was in order then. 

49.  At 6:13 am, PW1 patrolled again. He noticed someone was inside the meter room on Floor 33.  He went down and came up with PW2.  The two then waited outside the meter room for a few minutes.  The defendant came out at around 6:20 am.

50.  All the lightning conduits in the meter rooms on Floors 29-34 had gone missing.  They were long copper strips running from floor to ceiling.  Such conspicuous objects were not found at the defendant’s home on Floor 18. Also, no bracket covers or bracket screws were found there.

51.  There is no evidence to show the defendant was in joint enterprise with others.  So, it must be the case that someone or some people else had removed the bracket covers in the meter rooms on Floors 29-34 and stolen the valuable copper conduits prior to the defendant’s entering the meter room on Floor 33.

52.  The prosecutor cannot be sure if the defendant was related to the theft of the conduits but he is adamant the defendant entered the meter room on Floor 33 with intent to steal therein. 

53.  But what was there for the defendant to steal when the conduits had all gone?

54.  If the defendant were involved in the stealing of the conduits earlier, he would have known there was nothing worthy of his return.  The bracket covers obviously were of very low value. If the defendant wanted them anyway, he could have taken them earlier instead of having to return to the scene.  And if he really returned for the bracket covers, he would not leave three to four (out of nine available on Floor 33) lying on the ground.

55.  The prosecutor asks the court to reject PW1’s evidence in this regard to find there were actually no bracket covers on the ground of the meter room on Floor 33.

56.  The exhibit officer PW5 found some bracket covers on Floors 30-32 but none on Floors 29, 33 and 34.  However, he only arrived more than two hours later.  There is no evidence the scene had been properly guarded before he arrived.

57.  There is no good basis to reject PW1’s testimony that there were three to four bracket covers lying on the ground of the meter room on Floor 33.  I have to accept that was the fact.

58.  The prosecutor says the defendant had put the sixteen bracket covers in his backpack, nine from Floor 33 and seven from elsewhere. If that were true, the defendant must have gone to some other floors as well.

59.  There were no bracket covers found on Floor 29 and Floor 34. However, there were a total of twenty-two bracket covers lying on the ground of the meter rooms on Floors 30-32.  If the defendant appeared or reappeared to sweep for the bracket covers, why would he clear Floors 29, 33 and 34 but not Floors 30-32?

60.  Maybe the defendant had not gone to Floors 30-32 yet?  Then why would he first go to Floor 29 and Floor 34 (or vice versa) and then Floor 33, instead of sweeping the floors in sequence downwards from Floor 34 or upwards from Floor 29?

61.  The prosecutor suggests the defendant gave up the bracket covers on Floors 30-32 because they were of poor quality and not worthy of stealing.  I look at Exhibits P12-P14. I find those twenty-two bracket covers are no different from the sixteen in the backpack.

62.  It does not make sense that the defendant entered the meter room on Floor 33 with intent to steal but only took some and not all the bracket covers there.

63.  It does not make sense either that, if the defendant were minded to steal the bracket covers, he would give up the bracket covers on Floors 30-32 or that he went from Floor 29 straight to Floor 34 (or vice versa) before landing himself on Floor 33 where he was caught.

64.  PW1 says the defendant told him that he got back the stool.  Defence Counsel puts to PW1 there is no record of such utterance in his witness statement. PW1 agrees. He says the police had not asked him about that.

65.  When the defendant gives evidence, he does not say he made that utterance to PW1. He simply says the security guards would not let him go so he argued with them. The prosecutor does not put to the defendant that he told PW1 he was there to get the stool back.

66.  If the defendant came back for the stool, he must have brought it to the meter room earlier. That would inevitably link him to the stealing of the conduits. However, there is no evidence he did so either by himself or with others.

67.  If the defendant were there for the stool, he could just grab it and leave. There was no need for him to close the door and to stay there for some minutes. 

68.  Thus even if the defendant had really made that utterance to PW1, he probably said it out of panic and gave a convenient answer to PW1 who questioned him why he came out of the meter room. At that time, he was holding the stool and the gloves.

69.  The defendant says he pissed inside the meter room.

70.  The prosecutor comments the defendant could piss at his female friend’s place if he had the urge.

71.  There are indeed people who do not care much about public hygiene and would rather piss at a secret corner than in a female friend’s home.

72.  The defendant has not called his female friend to testify.  That is his right.  On the other hand, the prosecutor makes no attempt to call rebuttal evidence to prove there was no lady living in Room 3317 acquainted with the defendant or if there was such a lady she had made no appointment with the defendant.

73.  PW1 and PW5 are not questioned by either party on whether the floor, wall and door of the meter room on Floor 33 had been wetted.

74.  PW2 had no idea at all.

75.  PW4 says no one urinated in the meter room and he smelt nothing special therein. But at that time, the officer was not made aware of the urine issue.  He should not be expected to look for a particular smell or odour there. PW4 does not say how he inspected the meter room and he admits he paid no attention to see if there was anything on the ground. 

76.  The photos of the scene offer limited views and cannot assist in this regard. So whether the wall, floor and door of the meter room was wet with urine, it is not clear.

77.  The prosecutor asks the court to reject the defendant’s evidence and to find the defendant had entered the meter room to steal.

78.  There was really not much in the meter room to be stolen after the conduits had gone.  If the defendant were to steal the nine loose bracket covers, he could do so in less than a minute.  Instead, the defendant stayed in the room for much longer and with the door closed. 

79.  The defendant says he closed the door to urinate. Then he checked for his female friend’s message again.  That fits the time span of several minutes.

80.  The defendant says the backpack was not his. Inside the backpack, there were some bracket covers, one screw and one screwdriver. There is no evidence it contained any of the defendant’s personal belongings.

81.  The prosecutor says there were tools found at the defendant’s home: two spanners, one pair of pliers and three screwdrivers placed on a chair.  He postulates the defendant had taken one screwdriver (Exhibit P4) out for his thievish act and left behind the other tools at home.

82.  If the defendant were out to steal, one would expect him to take all those tools with him instead of equipping himself with only one screwdriver.  What if that screwdriver could not break the locks or fit the screws? 

83.  The defendant explains he put the tools on the chair to dry out after using them to fix the shower.

84.  The tools were indeed placed quite neatly on the chair, which was just outside the bathroom/toilet in the flat.

85.  The defendant is a man of clear record.  His version is not one that can be readily dismissed in the light of what happened in Chui Shue House that morning. His evidence is not shattered under cross-examination.

Verdict

86.  I accept the defendant’s evidence that he found the backpack before he entered the meter room on Floor 33 to urinate therein. He dishonestly appropriated the backpack and the contents in it. I acquit the defendant of burglary but convict him of theft of the backpack and its contents.