HKSAR v. RAJPAL

DCCC 178/2021

[2021] HKDC 1446

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 178 OF 2021

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REASONS FOR VERDICT

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1.  In these proceedings, the defendant Rajpal faced two charges framed in the alternative. The 1^st count is one of burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210. The 2^nd charge is one of criminal damage, contrary to section 60(1)  of the Crimes Ordinance, Cap 200. The defendant pleaded not guilty to both counts.

2.  The substance of the 1^st charge case is that the defendant on the 8^th day of December entered as a trespasser into Room 1, Basement, No 103 of the First Street, Sai Ying Pun, with intent to steal therefrom; whereas the alternative charge of criminal damage referred to the door having been broken.  I would here refer to the Room No 1 as “Room 1” and the address as “the premises in question”.

3.  Both the prosecution and defence agree that, for the 1^st count, the prosecution has to prove a specific intent to steal, whereas the Charge 2 is a matter of basic intent, by doing what the prosecution contend he did, he intended to destroy or damage or being reckless as to whether his action would cause damage to the wooden door to Room 1.

4.  The premises in question consisted of two floors.  On the basement level, it was subdivided five units, each rented out to a different tenant. There was a communal cooking area and toilet.  Room No 1 was rented out to a Filipino gentleman, whereas the defendant at the material time was a tenant of the adjacent Room No 2.  The second floor was occupied by a Filipino lady, who was PW2 in these proceedings.

5.  The question to be determined was whether there was a burglary, in the sense that whether the room was broken into by the defendant with intent to steal.  As to the alternative, the essence of the matter was whether the damage to the door was caused by the defendant.

6.  In respect of both charges, the defence counsel put the prosecution to strict proof.  From the cross-examination and the facts admitted, it is clear that there was no issue taken as to the fact that the door to Room 1 was damaged, in the sense that there was a hole with a piece of wood missing where a padlock was originally affixed.  The doorknob was loosened.  Although it is not clear whether the door still could be locked, it could not be disputed that it was damaged.

7.  PW1, Mr Samonte, the tenant of Room 1, resided therein with his wife. He told this court that the doorknob was not working but he had fixed it.  He also used a padlock to further secure the door. 

8.  On the 8^th day of December last year, he left the room and had the door locked and secured.  At about 11:30 pm, when he returned, he saw policemen was already waiting for him.  He found the door to his room had been damaged; there was a rectangular hole where a piece of wood was missing and where the padlock was originally affixed.  He also confirmed that there was fresh scratch mark to the doorknob on the door and the way the doorknob was hanging were different from when he left Room 1 (see the pictures, P2).  He also confirmed that his room was ransacked.  He first told the police he did not suffer any loss except for a thermos boiler, but later he could not find his watch and a silver necklace.

9.  Under cross-examination, that door was damaged was not questioned, and the room had been ransacked had also not been challenged.  He did tell the police that a thermal boiler had gone missing but then he was not sure, he would have to sift through the mess in his room to confirm.  However, his statement (MFI-1)  was to the effect that he told the police nothing was missing or he lost nothing.  He did not then tell the police about the loss of the silver necklace or watch, as at the time he do not know if they were.  He denied that he told the police words to the effect that there was nothing lost.

10.  In assessing his credibility, I found the substance of what he said was not challenged.  As to the statement MFI-1, I do take into consideration of the fact that both the statement-taker and the victim, PW1, were not using their respective mother tongues, I also took into account of the fact that invariably, when we reduce oral speech into writing, we have to summarise and change the wordings because one does say something and then afterwards say something else in contradiction of the earlier version.

11.  I did not find what appeared to be a contradictions in any way affect his credibility on the substantive issue.  He was the occupant of Room 1.  He was the one who left the room with the door intact.  When he returned, his door was left ajar.  The lock was broken, the door was damaged, and the contents of his household goods were in disarray.  That is consistent with someone had entered his room without his authorization, intending to find something valuable to steal.

12.  The fact that he did not find his necklace missing and also his watch missing indicated that those items were probably not of great value and he was fair enough to say that he did not find it missing because the room was in a mess.

13.  However, I do find that there was a break-in.

14.  Ms Servanes (PW2)  was a tenant of the 1^st floor.  She knew of the defendant as someone who rented a unit on the ground floor.  They did greet each other when they saw each other.  To get to the 1^st floor, she had to go through the corridor inside the premises to a staircase, in the process passing by Room 1 and Room 2.  On the day in question, at about 7:30 pm, she was in her unit when she heard some noise.  She looked down the staircase and saw the defendant in the cooking area.  Then she saw the defendant use a knife to poke at the doorknob of Room 1.  She was alarmed and called the landlord, Mr Tam, who arrived in about 10 to 15 minutes’ time.  She also agreed that at the time the defendant appeared to be drunk.  She also stated that defendant was a habitual drinker, but he had never behaved as badly as he was on this occasion.

15.  Under cross-examination, she agreed that there were other people living in the other units at the time.  She also said that she did not witness the defendant stumble but she was firm on her seeing the defendant using a knife to poke at the doorknob.

16.  The landlord, PW3, Mr Tam, received the call from PW2 and returned to the premises in two or three minutes’ time.  He noticed that the door to Room 1 was left ajar and its content in disarray.  There was also a screwdriver, a knife on the floor in the corridor, but he could not tell who eventually picked it up and placed it in the cooking counter (see P2(9)).  He had confronted the defendant by asking him why he broke open the door of Room No 1.  The defendant did not respond.  He also saw the defendant pick up a knife but put it down after PW2 yelled at him.  He agreed that the defendant at the time appeared to be drunk.  The defendant was not able to stand properly or walk normally.  He never noticed that there was a knife on the floor.

17.  PW4 was the police officer who came to the premises and saw the door to Room 1 open and its doorknob loosened.  There was a screwdriver on the floor. There was a knife on the floor.  After he declared arrest of the defendant, the defendant appeared to be agitated and eventually he had to use handcuff on him.  In the police station, the defendant refused to sign a notice of rights to persons detained.

18.  Under cross-examination, it was revealed that the defendant was sitting outside the premises when the police arrived.  He did not respond to the declaration of arrest, and he also agreed that at the time the defendant appeared to be drunk.

19.  PW5 was an Exhibit Officer and was also responsible for interviewing the defendant the next day.  During the course of the interview, PW5 agreed that on two occasions the defendant had indicated that he wanted to vomit but nothing came out of his mouth after he was taken to the toilet.

20.  There appeared to be some contradictions in the witnesses’ account of events, in particular, where the knife was when the police arrived, how it ended up on the cooking pan.  In this regard, I take into account the fact that PW1 to 3 were both civilians.  They may not be used to the precise demand of the rule of evidence.  But one thing, when all the statements were read together, is clear.  There was a break-in to PW1’s apartment, namely, Room 1.  The door was damaged.  At some point, the defendant had been seen with the knife.  The defendant was a habitual drinker and, on the day in question, the defendant appeared to be drunk.

21.  After I had ruled that there was a case to answer, the defendant elected to give evidence.  What he gave was a long meandering and rambling account of his relations with others, what happened to the day, and his repetition of the defence to the effect that, since he was living in the premises, he had no reason to steal from his neighbour.

22.  What I could make out from his account of events, despite this court’s pleadings, warnings, and by his counsel’s repeated questions, the defendant failed to give a consistent account, but what he said seemed to be like this:-

•  He had been on a rough patch while having a lover’s quarrel with his live-in girlfriend, who left him. On the day in question, he woke up in a bad mood and he started to drink whisky. He finished half a bottle[1] before he went out.

•  By accident, he ran into a friend who offered him more whiskey to drink but he could not say how much he drank.

•  He finished half of what his friend gave him, then suddenly realised that he had another bottle in his pocket, so he poured it into the bottle that he carried in his pocket, went home, and then finished the rest of it.

•  As he was drunk, he fell.

•  He did not break into the door of his neighbour trying to find something to steal.

23.  To say the defendant’s account was inherently unreliable would be an attempt to elevate the quality of his defence.  It was a rambling, meandering and repeated self-defence proclamation.

24.  From his evidence, I cannot make out on that day how much he had drunk. I cannot make out did he actually drink at the park and then poured whatever is left he drank in the park in the bottle he happened to have in his pocket, because what he said was inconsistent with itself.  So, for this reason, I cannot find anything I can rely on in his account. 

25.  The only thing which is consistent with the prosecution’s case was he seemed to be under the influence of alcohol on the day.  The other thing is the injury he suffered, as appeared in the Admitted Facts, seemed to be consistent with the alleged fall, although it is not clear where he fell and how he incurred such injuries. 

26.  It is for the prosecution to prove the case beyond all reasonable doubt.

27.  The contention that he was drunk and therefore was not in sufficient command of his faculties to have an intent to steal must be disproved by the prosecution.  Although he himself had some evidential burden, that actually also came in the prosecution’s case, all the prosecution witnesses said that he appeared to be drunk.  PW2 went so far as saying that he was a habitual drinker.

28.  So in this case, I found myself unable to draw the conclusion that it is beyond all reasonable doubt that, in his state of inebriation, he had the intent, or he was capable of forming an intent to steal.

29.  However, I do find that there is sufficient evidence from which I can say with no doubt at all that he had used the knife to poke at the doorknob of Room No 1.  From the circumstances of the case, especially from where the padlocked appeared and also the state of damage of the door to Room No 1, the only inference I could draw was the defendant was responsible for the damage caused to the door.  I also suspected the defendant may have gone inside and rummaged therein, but that is not necessarily part of the alternative charge. Therefore, I do not make any findings on this fact.

30.  I found the defendant guilty of the alternative charge of criminal damage.