HKSAR v. MAHMOOD AZHAR

DCCC 800/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 800 OF 2015

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Reasons for Verdict

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1.  The defendant faces one charge of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He pleaded not guilty.

2.  The particulars are that he entered as a trespasser on 27 July 2015 into a building at No 430 Portland Street, Mongkok, Kowloon and stole from therein.  He stole a trolley, a bag, 11 rolls of electrical wire and two bundles of electrical wire.

3.  Number 430 Portland Street was a shop under renovation.  Tools and construction material were left locked inside it.  It had a front door and a rear door that led to a rear lane.  The front door had a temporary combination lock and the rear door is bolted from inside.

4.  The prosecution allege the defendant broke in through the front entrance at about 3.30 am, stole the wire and put it in a white bag on top of a stolen trolley and exited through the rear door.  He pushed it to a recycling shop nearby and sold everything for $500.  He was seen approaching the shop and put under observation by a police officer.  He was followed after he left the shop.  Not long after, he was stopped and arrested by the police.

5.  Later, a contractor reported a burglary of No 430 Portland Street and identified the items the defendant sold to the recycler as his belongings at the police station.

6.  The issue is one of identification.  There is CCTV footage of a burglar entering the shop and leaving by the rear lane with his loot.  The defence submit this was not the defendant, notwithstanding certain similarities.  The defendant was arrested by mistake and wrongly accused.  The burglary is not challenged; there was one, but the defendant was not the burglar.

The prosecution case

7.  Much of the prosecution’s evidence was not challenged.  The Admitted Facts, P15, refers to an album of photographs agreed, P6.  It depicts the premises, the stolen items, the defendant after his arrest, and frames taken from CCTV footage.  It also refers to the CCTV footage from two cameras, Exhibit P8 and P9.  It includes a video recorded interview conducted, Exhibits P13, P14 and P14A, which does not contain an admission or lengthy explanation.

8.  PW3, the contractor of the shop premises, identified the trolley, P3, the white bag, P1, and all the wire in it, P2, in court and at the police station when reporting the burglary.  His evidence was not challenged.  The fact his items, P1, P2 and P3 were stolen from the premises in a burglary was not challenged.  The total value of all the items was about $2,500.

9.  PW4 and PW5, two police officers, dealt with the photographs they took in Exhibit P6, as well as the sketch, P5.  Their evidence, photographs and sketch were not challenged.

10.  PW1, the most important witness, was a police officer on patrol with other officers in the area, briefed to keep an eye out for burglars targeting shops under renovation.  She separated from other officers when she went to the toilet.  At about 4 am, she spotted the defendant pushing a trolley with a white bag on it.  She described the defendant’s appearance and clothing in great detail.

11.  The defendant’s trolley made her suspicious because normally at 4 am in that area a person pushing a trolley either pushed pig carcasses or market produce, or was a street sweeper with baskets for the rubbish on a trolley.

12.  She followed him to a shop where the defendant banged on the metal roller shutter.  A woman opened it and the defendant went inside with his trolley.  She closed the gate again.  It was a recycling shop and the light was on inside the shop.

13.  PW1 tried to look inside and found a side gate of the roller shutter open.  She could see inside.  She saw the defendant sat down.  She was sure, judging by his clothes and appearance, it was the same man she followed earlier, pushing a trolley.  Now, she saw his face clearly from three to four metres away.

14.  She described him as a Southeast Asian male, wearing a red vest, sleeveless with white stripes.  He had on black shorts with white printing on the back pocket.  He wore flip flops.  He was dark-skinned, had a beard and a unique hairstyle.  His fringe or bangs was straight, neat and just above his eyebrows.  She described what is commonly referred to as a pudding bowl or a mushroom head haircut.  He had a full head of hair.  She said he had deep set facial features.

15.  Not long after, the defendant left the shop through that same side door.  The female followed him out with an empty trolley and put it on the pavement outside the shop.

16.  PW1 followed the male to under the flyover at Tung Chau Street.  He stopped there.  PW1 then left him and went back to the recycling shop.  She knocked on the roller shutter and went in through the side door. She saw the same white bag on a scale.  The same woman let PW1 look in and she saw the many rolls of electrical wire.  That woman, PW2, told PW1 she paid the male $500, a $500 note, the male that was just sat there inside her shop.

17.  By the time she had spoken to PW2 at 4.14 am, her other team members arrived.  She had called them earlier after she followed the male when he left the shop.  She briefed them and all went back to the flyover to look for the defendant at 4.17 am.

18.  She saw the defendant stood outside the park or garden by the flyover of Tung Chau Street.  She approached him with her colleagues, including PW6.

19.  She revealed her identity to him and spoke to him.  He spoke to her in English and Cantonese with an accent.  He gave her a Form 8 Recognisance as his identification.  He told her he had been in Hong Kong for nine years, in Cantonese.  He answered her question, “Why did you go to the shop earlier on?”, with a response in English.  He said, “Sold metal.”  The defendant had no objection to being searched.

20.  PW6 searched him and found some pieces of paper, a $500 note and other notes in his pocket.  He put these items back in the defendant’s pocket.

21.  They all walked together back to the recycling shop in about one minute.

22.  PW1 said she took the electrical wire out of the bag and showed them to the defendant.  PW2 was there and she told PW1 that it was this male, the defendant, that sold her the items.  She gave him a $500 note.  PW2 said the defendant came to her shop and told her the items were leftovers and wanted to sell them.

23.  PW1 then asked the defendant if the wires belonged to him, in English and Cantonese, to which he replied, “No, no, no,” in English numerous times.  PW1 did not believe the defendant and arrested him for theft by finding.  She asked him to take out the $500 note from his pocket, which she displayed to PW2.  She said nothing and PW1 seized that note.  She did not caution him as there was no interpreter present.  It is not in dispute the male she arrested was the defendant.

24.  At the police station, she reported to the Duty Officer and served the defendant with a Pol 153, one printed in Urdu.  He didn’t sign it.

25.  PW1 spent time locating an Urdu interpreter only to find when she was successful, the defendant had been taken to see a doctor as he requested.  He was not interviewed until the next day with an interpreter present.  He made no admission under caution.

26.  PW1 explained that not long after they took the defendant to the police station and he was in the custody of the Duty Officer, she met PW3 when he came in to report the burglary of the shop.  In front of PW1, he was shown and identified P1 to P3 as his stolen items.  PW1 then immediately went to the defendant with the Duty Officer’s knowledge and arrested the defendant for burglary.

27.  It was put to her in cross-examination that the defendant requested to see a doctor because he had stomach problems.  She had no knowledge of this.  She went on to deny that the defendant was roughly man-handled and physically dragged back to the recycling shop by the police. He walked back, flanked by police officers, willingly and on his own accord.

28.  She also denied he was stopped by her and her colleagues inside the park or garden.  She reiterated he was outside the park entrance when she first had contact with him.

29.  It was put to her that the man she arrested and who was photographed at the police station, P6, photographs 21 to 24, was not the same man she followed to and from the recycling shop.  There were differences in his appearance and hairstyle, and his clothes bore similarities only.  She rejected this suggestion and is sure he is the same man.  She rejected the suggestion she arrested the wrong man.

30.  She also denied the suggestion the defendant never said in English he “sold metal”.

31.  It was put to her that the defendant never had on his person a $500 note.  It was also suggested she should have sealed the $500 note in an evidence envelope in front of the defendant and ask him to sign it.  She denied this was the case, nor did she have to pack that exhibit in front of the defendant.

32.  PW2 was the woman who opened the door of her shop to the defendant at 4 am, shut the door or gate behind them before paying the defendant $500 for his trolley and items on it.

33.  She did not identify the defendant formally in court.  Her evidence was that many Southeast Asian males looked very similar. She described a male with short black hair, medium build, 20 to 30 years old and 1.6 to 1.7 metres tall.  In chief, she did say the police brought the same male who sold her wire back to her shop.  However, in cross-examination, she recognised the male because the police told her he had pushed a trolley to her shop and he had a Hongkong and Shanghai Bank $500 note on him.  She recalled she had given such a note to the vendor earlier.  Her identification was weak and contradictory.  However, she does confirm that she did pay $500 to a Southeast Asian male for items P1 to P3 at about 4 am that morning.

34.  When he left, a WPC, PW1, came to her shop and asked her questions.  Not long after that, the police brought a male to her shop and arrested him there.  She did say when she bought the items from him, he was outside the shop, whilst she was inside.  This is contrary to PW1’s evidence.

35.  The last witness, PW6, was on duty with PW1 that morning.  He gave evidence that before PW1 called for assistance he had noticed No 430 Portland Street shop was under renovation, but the padlock was unlocked.  He went in, but did not notice if anything obviously had been stolen.  He noticed the rear door unlocked and opened it.  Before he left, he locked the rear door and shut the front gate and door.

36.  Only after that did he know that PW1 had asked for their assistance.  He and another officer went to meet her at the recycling shop.  He describes meeting her, being told of her suspicions of the male she had followed and accompanied her to locate that male again.  She described the male’s clothing to them.

37.  When they got to Tung Chau Street park, he saw a male matching her description stood at the entrance of the park.  She approached him, so PW6 followed PW1 to apprehend the defendant.  He heard PW1 ask the defendant some questions.  Amongst those questions and answers, he heard the defendant say “Sold metal”.

38.  He also denied the defence suggestion the defendant was inside the park when stopped and that he did not say those words.  He denied the defendant was dragged to the recycling shop after he was stopped, questioned and searched.  He is sure the defendant had a $500 note in his pocket which PW1 later asked him for later.  PW1 seized it.  His evidence supported PW1’s evidence.  He also drew sketches P10, P11 and P12, as well as retrieved the CCTV footage of P8 and P9.

The law

39.  The prosecution has the duty to prove beyond reasonable doubt the defendant was the man who burgled the shop, 430 Portland Street.  The defendant has nothing to prove.

40.  The defendant elected, as is his right, not to give evidence.  The failure of an accused to give or call evidence is no evidence of his guilt, it proves nothing one way or the other.  The consequence of doing so is to leave the prosecution case enjoying the advantage of not being undermined, contradicted or explained by any testimony from the accused.

41.  The only issue here is whether or not the defendant is the male that PW1 followed pushing a trolley with a white bag on it to the recycling shop and sold it all for $500.  Is the male on CCTV footage seen entering the front door only to leave by the back door with a trolley with a white bag on it the defendant?

42.  There is no argument or suggestion that that male did not enter as a trespasser and steal from within.  There is a submission that there is not sufficient evidence to prove beyond reasonable doubt that the defendant was that male.

My findings

43.  I have considered the evidence presented and the submissions made on behalf of the defendant.

44.  After careful consideration, I accept PW1 and PW6’s evidence in its entirety.  I found no discrepancies serious enough for me to doubt their evidence.  Their evidence supported each other.  Moreover, I am sure PW1’s description and identification of the defendant as the male she followed is reliable, accurate and the truth.

45.  PW1’s description of the defendant is detailed. I am sure as a professional her identification is good.  The defendant’s clothing was distinctive enough as was his features that included a hairstyle which left a deep impression on PW1.

46.  I am sure she made no mistake when she stopped the defendant with PW6 and another because he was the same male she had followed to the recycling shop with a trolley and white bag minutes earlier.  I am sure he told PW1 that he had sold metal to the recycling shop when she questioned him.

47.  I do not rely on PW2’s evidence to identify the defendant as the male that entered her shop.  It is weak on that aspect.  I also do not believe PW2 when she said he sold her items whilst stood outside her shop.  I am sure he knocked at 4 am and she opened to let him in, but quickly shut the gate behind them both.  I am sure she did not want to attract attention at 4 am to what can only be described as a suspicious transaction.

48.  The CCTV camera footage from a shop next to 430 Portland Street and one in the rear lane strengthens PW1’s evidence immeasurably.  In fact, her evidence and the CCTV footage together add up to an overwhelming case against the defendant.

49.  Exhibit P6, the photo album, contains stills taken from the CCTV footage, photographs 25 to 34.  The actual CCTV footage was shown in open court during the course of the trial.  It is crystal clear and no mistaking the defendant arrested by PW1 is the same man who enters the shop through the front door and exits the rear door with items he has just stolen from inside.

50.  At one point on P8, the CCTV footage of the front of the shop, the defendant turns to look around and looks directly at the camera and it is without doubt the defendant in the dock and the male of photos 21 to 24 of P6.

51.  In photograph 32 and from viewing P9, the CCTV footage, the defendant’s distinctive hairstyle is very visible and I agree with PW1 it was unusual.  I can see why it made a deep impression on PW1.

52.  The only issue is identification and I am sure from the evidence of PW1 and the CCTV cameras, the defendant is seen entering the shop, he steals from within and is immediately seen going to the recycling shop with his loot to sell it on.  He was effectively caught red-handed.  The evidence is overwhelming.  I find the defendant is the burglar captured on film and followed by PW1.

53.  I am sure the prosecution can prove the charge beyond reasonable doubt, accordingly the defendant is convicted of burglary.