HKSAR v. BARDALLINI, RICCARDO

DCCC 190/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 190 OF 2016

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Reasons for Verdict

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1.  The defendant has been charged with one count of burglary.

2.  The particulars of that offence are that on 4 November 2015, the defendant entered Flat C, 19th Floor, Kwong Ga Factory Building, 64 Victoria Road, Sai Wan as a trespasser, and stole two suitcases, two turntables, one notebook computer and one mini keyboard.

The Prosecution’s Case

3.  The prosecution say, and the defendant agrees, that the defendant entered the premises, a commercial property, at about 2.30 am after the security guard of the building let him in.  The property is the office/sound studio/storage facility of Yellow Frog Media Limited.  The defendant is a shareholder and was a director from inception in 2001 to 2012, when he was removed by the majority shareholder, another director, Mr Robert Porter, PW3.  The defendant’s shareholding is 12½ per cent.  The prosecution say the defendant cut the lock, removed the padlock, and stole several items from within.

4.  These items were recovered two days later at the defendant’s workplace.  The defendant says he entered with a key, but as he turned the key, it broke the lock.  He took those items, but they belonged to him, or at least he believed they did.  The prosecution say he had the necessary intent to steal.  The defendant denies such an intent.

5.  The prosecution case is that the defendant, although a shareholder of the company, had no key nor any right to enter unless invited, and there was no invitation or permission given.

6.  The premises were locked up on the night of 3 November with a big padlock.  The next day, the director of the company, PW3, Mr Porter, and an intern, PW2, Mr Szombathy, realised after some time that items were missing, the lock was missing, and part of the gate was sawn off.  After making these discoveries, the police were informed.

7.  On 6 November, the police went to the defendant’s workplace, a restaurant in Ap Lei Chau, and searched the premises with his consent.  They found all the items easily.  None were hidden from sight.  The defendant was arrested.

8.  In a video-recorded interview under caution, he claimed not to recognise himself on the CCTV footage of the building, effectively denying he entered the premises.  He claimed to have been at work at the material time.  He claimed all the seized items were his personal belongings and he had receipts for those items.  He claimed to have had the right to enter Yellow Frog Media as a shareholder.

9.  PW1, the security guard, identified the defendant at a subsequent identification parade.  PW1 let the defendant into the building at 2.30 am when the defendant said “19C”.  PW1 knew the premises were Yellow Frog Media and that people would often go in and out late at night or in the early hours of the morning; he did not think it was strange.  He said the defendant left about half an hour later, carrying heavy cases.  He helped the defendant through the side door, as seen on CCTV, as the items were clearly bulky.  He is seen taking something from a table and writing something down as the defendant is leaving through the gate.  P25, photograph 21, is a still of the CCTV footage and shows PW1 helping the defendant.

10.  PW2, the intern at Yellow Frog Media, had never met the defendant at the offices of Yellow Frog Media, but in fact in his own restaurant.  His evidence was that he locked up in the evening of 3 November, but realised later, at about 2.30 pm the next day, with Mr Porter, PW3, that the lock had been cut off and some items were missing.  He recognised the exhibits, the laptop and the mini keyboard, but not any of the other items.

11.  PW3 gave evidence that Yellow Frog Media had been set up in about 2000 when a company called Yellow Frog Productions went out of business.  A group of people put their money together to buy the assets of Yellow Frog Productions and set up Yellow Frog Media.  They included four other men.  The defendant was one of those men.  The defendant and PW3 were directors.  PW3 had 54 per cent shareholding, but by 2012 he and his wife together had 87.7 per cent.  The defendant had 12.5 per cent.  The other original investors were no longer involved.  PW3 had bought them out.

12.  In 2012 PW3 and his wife had the defendant removed as a director in an EGM, an emergency general meeting.

13.  I was told that at the beginning, in about year 2000 to 2001, the five men pooled all their personal equipment, be it audio, visual, computers, musical or lighting equipment.  The value of the items were added up and shareholding was given according to the value of the assets each man brought in.  They all brought in work, did their own projects, and used company equipment collectively.  PW3 described it as a business used as an umbrella for each person to do their own projects.  He said the defendant did sound work, sound equipment rentals and DJ‑ing.  PW3’s own specialty was audio work.

14.  PW3’s evidence was that the company ran at a loss at all times.  The company moved premises on several occasions and last moved in October 2011 to the premises on the 19th Floor in Kwong Ga Factory Building.  When the company moved the last time, PW3’s evidence was the defendant did not have a key to gain access.  Problems by then had arisen between them and he refused to give the defendant a key.

15.  By January 2012, some months later, PW3 wanted to remove the defendant as a director.  He called for an EGM for 3 pm on 18 February 2012.  The company secretary informed the defendant of this agenda at this meeting and sent him proper paperwork to inform him accordingly.

16.  At 3 pm on 18 February the defendant did not show up, and the resolution was passed.  PW3 said not long after, at about 4 pm, the defendant called him and said he was on his way.  PW3 had to tell the defendant that the matter had been dealt with already.  Two directors had passed the resolution, Mr Porter himself and his wife.  Documents relating to this resolution were exhibited at P29(8)(f).  PW3’s evidence was that the defendant was unhappy over the phone about this matter.

17.  At about the same time, Yellow Frog Media owed the defendant a cheque for HK$12,500 for work done.  PW3 took advantage of this and arranged for the defendant to return equipment PW3 said belonged to Yellow Frog Media.  He would at the same time give the defendant equipment that belonged to the defendant but was stored at Yellow Frog Media.  He also offered to give the defendant some equipment belonging to Yellow Frog Media that he did not want any more.  When this equipment was returned and collected, he told the defendant he would give him the cheque for the money owed, but not before then.  PW3 described this as a “carrot and stick” situation.

18.  PW3 said this arrangement was discussed over the telephone and put in an email to the defendant.  The defendant said he never received an email with the list of items, but he did agree it was discussed and there was such an exchange.  When this exchange took place, PW3 then gave him a cheque for $12,500 that he was owed.

19.  Apart from a G3 laptop, PW3 said all items were accounted for, and there was a clean break between the defendant and Yellow Frog Media.  PW3 said he accepted the defendant’s G4 laptop to replace the missing G3 laptop.  PW3 said there was nothing left in Yellow Frog Media that belonged to the defendant after early 2012.  He did not permit the defendant to enter and take anything on 4 November 2015.

20.  The defendant did not agree.  He said there were items outstanding that belonged to him.  He was just not that interested in those items until 2015.

21.  After this exchange, PW3 said the defendant sent a letter via the company secretary questioning the business dealings of Yellow Frog Media, and requested a meeting as well as a financial audit for several years.  PW3 said the company secretary provided the defendant with all requested documents.  PW3 thought that the defendant did feel unfairly treated and would have felt aggrieved by his removal as a director.  PW3 said that about the items missing, he recognised the mini keyboard because he used it regularly.  The laptop was on his desk and contained his sound library.  The two suitcases were part of the stock of Yellow Frog Media.  He did not recognise the two turntables seized and shown to him by the police, but he did know that two were taken from the premises because on the turntable shelving unit there were two empty spaces.

22.  From photographs of Exhibit P25 it is obvious this company unit was full of stuff.  It was crammed with much equipment.

23.  PW3 said the laptop was a G4 like the one the defendant had given the company, but it was not the same one.  PW3 also said that the items stolen were of little value.  There was in fact much more expensive equipment in the unit that was not touched, taken or stolen.

The Defence Case

24.  The defence called first a Mr Richard Swan, who was involved with Yellow Frog Media at the outset in about year 2000 until about 2006.  His evidence was he helped to do the very first inventory when Yellow Frog Media was set up to calculate the value of all assets there and the value of the assets put in by several investors.  He recognised the mini keyboard and recalled it belonged to the defendant.  He said the defendant used it exclusively.  He used it when he was DJ‑ing as it was a good size and portable.  He recalled that there were in fact two similar mini keyboards, but one did not work well.  He recalled that PW3, Mr Porter, had a G3 laptop and the defendant had a G4 laptop.  He also recalled there being suitcases like those taken in the offices of Yellow Frog Media.  They were used for transporting turntables.  In fact, they were specifically designed for that purpose.

25.  He was shocked to hear PW3 had said in his evidence that Mr Swan had been around and involved in Yellow Frog Media but left when trust issues arose.  Mr Swan said there was no such issue or problem and he left to do more IT work instead.

26.  The defendant then decided to give evidence, albeit out of order.  I take that into account, the fact he gave evidence after his own witness, but that would only concern a matter of weight evidentially. In this case, Mr Swan’s evidence related to matters some 10 years prior to the burglary.  None of his evidence actually related to or at about the time of the burglary.  In this case, the consequences of the defendant giving evidence after his witness was minimal.

27.  The defendant gave evidence that he did go to Yellow Frog Media’s premises at about 2.30 am after he had finished work in the restaurant that morning.  He said he had a key and inserted the key into the padlock, but the padlock and in fact the metal hasp broke that is the device for fastening the padlock to the gate.  When this happened, he did not leave the padlock and the broken parts in Yellow Frog Media’s premises.  He threw the lot into a bin in the building in the common area.

28.  The defendant entered the premises, but only looked for, touched, moved and packed up what he believed to be his own personal property.  He gave evidence he had no intention to steal anything.  He wanted to take what he believed belonged to him.  He recognised there were many items of high value such as the $10,000 microphone described by PW3, but he did not go there to steal any valuables.  He only went to take what he believed belonged to him.

29.  The defendant’s case is that he did not hide his identity from the security guard or anyone.  In fact, as he left the premises, the security guard asked him for his identification number and he watched the security guard write it down on a piece of paper.  On CCTV the security guard does in fact write something down, and the security guard was not recalled to rebut this.

30.  The defendant gave evidence that after he returned to his own workplace, he realised he had taken a wrong turntable.  He did not realise until later.  He also knew that one of the suitcases was not his, but he needed to use it to transport a turntable.  They cannot be carried unless in a case.  He had no intention of stealing of this case, but only to borrow it to move the turntable.  He fully expected Mr Porter to call him and ask about these items.  He knew Mr Porter would immediately know that it was the defendant who entered and took those certain specific items.  He did not expect the police to come to his restaurant and arrest him.  He gave evidence that he was upset, intimidated and a bit angry at the police presence and his subsequent arrest.

31.  This was clearly not the usual situation of a burglar entering premises to steal valuables as in dishonestly appropriating goods with the intention of permanently depriving the victim of his belongings.  There is a long history and nexus between the defendant, Yellow Frog Media and Mr Porter.  Clearly their relationship came to an end acrimoniously.  However, despite the defendant being removed as a director, he remained the only other shareholder.  PW3 admits in 2012 Yellow Frog Media owed the defendant money, but he had no intention to pass this money on to the defendant until there was an exchange of items, be it a return of company property or the defendant taking away his own belongings that were taking up space Mr Porter did not want in the premises any longer.

32.  I did not and do not need to delve into their relationship and why it ended as it did.  I am satisfied there was no love lost between them.  I am sure the defendant wrote Exhibit P30, a letter to Mr Porter and his wife, care of Linfield Corporation Services Limited, the company secretary.  This letter was dated 29 February 2012, not long after he was removed as a director.  The defendant asked for financial accounts for several years from 2008 and 2012.  The defendant expressed reservation as to the expenses, including directors’ expenses and entertainment costs, noting that he had never had such a financial benefit or expenditure as a director or shareholder of Yellow Frog Media.  He basically accuses the director of misconduct, and the contempt in the letter is obvious.

33.  I have considered the elements of this offence and particularly the evidence of PW3 and the defendant.  I do not believe the lock in the padlock broke.  I am not convinced the defendant had a key. Clearly, the defendant broke in; I am sure of that.  The defendant entered as a trespasser.

34.  But I am not convinced that he tried to hide his identity, nor am I convinced he intended to steal or did in fact steal items that did not belong to him.

35.  I have to consider the definition of theft and whether the ingredients of theft have been proved.  The background between the two men makes me think it is possible the defendant himself believed he was only taking personal property, or property he believed he had the right to remove.

36.  The premises is full of equipment.  It is an organised mess, by the looks of it from the photographs.  It is possible PW3 did not know exactly what there was.  He said no inventory was done since Yellow Frog Media began.

37.  The defendant said he tried to contact PW3, but PW3 ignored him.  That is possible, bearing in mind the way the relationship ended, despite what PW3 said in evidence.  It is also possible Mr Porter himself believed there was a clean break as far as the property was concerned, but the defendant felt or believed otherwise.  He felt he had no choice during the property exchange, as he was not going to get the money owed if he did not comply with the exchange.  That does not mean that he also agreed there was a clean break.

38.  In my findings, the defendant was not a good witness.  It is clear he lied to the police and was evasive during the interview and at times in court.  However, the seed of doubt has been sown despite my suspicions of his real intent.

39.  The prosecution has a burden of proof and it must be that it proves beyond reasonable doubt all the elements of burglary.  I find the prosecution here has failed to reach that standard, and the benefit of doubt goes to the defendant.

40.  The defendant is acquitted of this charge.