HKSAR v. SIU ISMAIL

DCCC 312/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 312 OF 2013

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to a charge of "Burglary". The premises involved are his neighbour's residence.

The Prosecution Case

2.  The defence agreed the entire prosecution case.  No live prosecution witnesses were called.

3.  Some time between 1:00 and 7:00 am on 28 August 2011, the defendant, as a trespasser, entered a private dwelling situated at Ground Floor, No.34C, Tai Wan Village, Tai Mong Tsai Road, Sai Kung ("the Flat").  He gained entry into the Flat by pushing and opening the aluminium framed window which provides access to its dining room and inserting his hand through the window opening.

4.  The defendant took from the Flat one "Apple" notebook computer and one "iPhone 4" smartphone, which were properties belonging to the occupiers of the Flat (Madam YING and Mr. Pisani).  The defendant was a neighbour of this couple and they recognized him to be so.

5.  On a date unknown but a few days after the alleged burglary, the defendant went to the Flat to find Madam YING and Mr. Pisani.  He admitted having taken their properties and apologized to them.  He also returned the notebook computer and smartphone to the couple.

6.  In January 2013, Madam YING and Mr. Pisani respectively identified the defendant at an identification parade.

The Defence Case

7. The defendant elected to give evidence, but did not call any defence witness.

8. The defendant is now 35 and resides with his girlfriend in his mortgaged flat in Tsing Yi. He is employed as an English teacher for pre-kindergarten children by a private English tutorial centre earning $22,000 per month. He was born in Letchworth, England and has been living in Hong Kong for 15 years. At the time of the alleged offence, he was living in Tai Wan Village, Sai Kung.

9. The defendant explained that prior to the alleged burglary, he was on friendly terms with Madam YING and Mr. Pisani, whom is known to him as Borg. He saw the couple moving in and had welcomed them to the neighbourhood. He walked past their house everyday on his way to work and would greet them whenever he saw them. He claimed that Borg has invited him in for a glass of wine or BBQ a few times. He joined a BBQ at Borg's patio once or twice.

10. Whilst living in the village, the defendant maintained what he called a "Sai Kung lifestyle" for expatriates by visiting bars and pubs almost every evening. He said he was living by himself and felt lonely and bored.

11. He stated that on 27 August 2011 (a Saturday), he finished work around 7:00 pm and was home about 8:00. He changed and headed straight to the bars by 8:30. He remembers having 5 to 6 pints of lager and 2 to 3 tequila shots that evening. He is 5'3" tall and weighed about 135 lbs. His last recollection of that evening was being in a bar named "The Boozer". He does not remember leaving the bar or going home. He claimed having no recollection of going into Borg's home and taking things away. He does not even remember going to bed that night.

12. The defendant said he woke up around 12:30/1:00 pm on Sunday. When he woke up, he had a sinking feeling that he had done something terrible, which he called a "morningmare". He got out of bed and went into his living room. He saw a laptop computer and a cell phone on his dining table. He recognized the laptop belonging to Borg because he has many times seen Borg using it and remembers the dent on it. The defendant panicked. He checked the cell phone and laptop to see if he had done anything to them. He discovered that the cell phone was in factory setting and reckoned that he must have reset it. Owning a MacBook himself, he checked all the deleted files in the Recycle Bin and restored everything contained in it.

13. The defendant was in serious panic. He tried hard to recall what he had done the night before but without success. He decided to return the 2 items to Borg. When he was ready to go out, he saw many police officers (uniformed and plainclothes) outside. He became even more panicked and was scared to take the items back. In that evening, he wrote a 2-page letter on his own laptop explaining to Borg what had happened and apologizing to him. He finished the letter about 1:00 am Monday.

14. When the defendant went to work Monday morning, the couple were not up yet. When he came back from work in the evening, the couple were not home. He waited at home for their return. The couple got home around 9:30 pm. The defendant went over there with his own laptop. He was too scared to speak to Borg, so he asked Borg to read the letter on his laptop. He was in great fear and shame. Luckily, Borg accepted his explanation and asked him to relax. Borg told the defendant that he would not mention his name to the Police and would not pursue the matter.

15. The defendant moved out of the village soon after this incident. Between August 2011 and January 2013, the Police made no attempt to contact him. He claimed that he has remained sober since leaving Sai Kung and would only drink at home now.

Assessment and Analysis of Evidence

16. The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt.

17. The only issue in this case is whether the defendant knew what he was doing when he entered the Flat and took the 2 electronic appliances away. According to his evidence, he was so drunk that he was unaware of what he was doing at the material time. In other words, he lacked the mens rea to commit burglary.

18. The defendant described his state of mind for the period when he lost memory on the night in question as being "blacked out". He claimed that he has been "blacked out" before. He was subsequently informed by friends that he had done and said things of which he has no recollection. During cross-examination, he agreed that what happened after he lost memory was similar to the plot of the movie "The Hangover" (and its sequels) (i.e. he did certain things but has no memory of having done so).

19. I have reminded myself of the legal principles on voluntary intoxication in cases of specific intent. The essence of his defence is the defendant lacked the necessary guilty intent to commit burglary because his mind was so affected by drink that he did not know what he was doing at the time when he did the act in question, and the degree of intoxication must have been such that it had prevented him from knowing what he would have known had he been sober.[1] I have also borne in mind that when the question of drunkenness arises, it is not a question of the capacity of the defendant to form the particular intent which is in issue; what is in issue is simply whether he did form such an intent.[2]

20. I have carefully considered the defendant's evidence and observed his demeanour in the witness box. He appeared to be honest, truthful and forthcoming. As a juror, I am of the view that the defendant's returning the 2 items to Mr. Pisani, explaining to him what had happened and apologizing to him does shed some light on his intent.

21. The defendant's returning of the laptop and cell phone to Mr. Pisani is plainly an extraordinary and remarkable feature in burglary cases. As an experienced criminal law practitioner, Mr. Egan submitted that he has never dealt with any case which the burglar decided to return the stolen goods to the victim and did so. I believe Mr. Egan in this regard.

22. In my view, the defendant needed not bother with returning the items to their owner if he had the intent to steal them in the first place; it is certainly an unlikely thing for a burglar to do. Even if he was scared knowing that the Police was alerted, he could have simply left the 2 items at the doorsteps of the Flat. He needed not take the trouble to explain and to apologize. The defendant's post-incident reactions do cause me to believe that his defence may be true in that he had no intention to steal those 2 items.

Based on the evidence before me, I find it possible that he took the laptop and cell phone from the Flat not knowing what he was doing at that time.

23. Based on the above analysis, there is clearly a doubt in respect of the defendant's intent to commit burglary. In other words, the prosecution has failed to prove the charge beyond reasonable. Hence, I find the defendant not guilty of burglary.