HKSAR v. CHEUNG CHUN SHING, LUM

DCCC 196/2020

[2020] HKDC 1103

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 196 OF 2020

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to one charge of attempted burglary of Room D on the 1st Floor of Kim Tin Building, Nos. 162-170 Reclamation Street in Yau Ma Tei, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2].

Introduction

2.  Room D is a corner unit located at the junction of Reclamation Street and Wing Sing Lane.  Since June 2019 scaffolding has been erected outside the building for building refurbishment.  Mr Liu was the owner and occupier of Room D and was residing in Room D during the refurbishment.  

Prosecution case

3.  The prosecution case in summary is that at about 00:30 a.m. on 19 February this year Mr Liu was about to go to sleep when he heard the sound of someone walking on the scaffolding outside the windows of his room.  Mr Liu looked out through the opening in the curtains and saw a Chinese male on the scaffolding outside his bedroom.  The Chinese male walked along the scaffolding and stopped outside Mr Liu’s living room where he shone a light into the living room and knocked on the window intermittently for about seven minutes. 

4.  At around 00:48 a.m. Mr Liu called the police who arrived at about 00:55 a.m.  The police saw the defendant on the scaffolding and asked the defendant to come down for enquiries.  While the police were conducting enquiries Mr Liu went downstairs and identified the defendant as the male he saw on the scaffolding outside his flat.

5.  The defendant, who was wearing a safety belt, was arrested for attempted burglary. Under caution the defendant said that he was practising how to erect scaffolding.  The defendant was also found in possession of various tools including a saw, a folding knife, a screwdriver and a pair of pliers. 

Defence case

6.  The defence case in summary is that when the defendant walked past the building he saw the canvas and the net on the scaffolding were loose; being a scaffolding worker the defendant found this dangerous and therefore decided to fix the canvas and the net; while on the scaffolding the defendant did not shine a light in or knock on the window of Mr Liu’s flat and did not attempt to burgle the flat and on arrest did not say to the police that he was practising how to erect scaffolding.

Evidence

7.  The prosecution called three witnesses on the list of prosecution witnesses: Mr Liu (PW1); PC 13819 (PW2), the arresting officer and PC 26407 (PW3), the exhibit officer.  PC 23485 (PW4), who also went to the scene and saw the defendant on the scaffolding was tendered for cross-examination[3].

8.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[4], including that Mr Liu saw a male on the scaffolding outside his bedroom[5]; after the police arrived Mr Liu identified the defendant as the male he saw on the scaffolding outside his bedroom[6]; the arrest of the defendant[7]; the defendant was not authorised to conduct any scaffolding work or any work at 162-170 Reclamation Street[8]and photographs of the scene and the exhibits seized[9]. I will refer to the admitted evidence as I review the evidence. 

9.  The defendant elected to give evidence.  No witnesses were called on his behalf.Also admitted in evidence is a video recorded interview (exhibit P21) in which the defendant, inter alia, said  that he did not attempt to burgle; the tools were for his work and that he had a licence for scaffolding work[10]. 

10.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.  

11.  I remind myself when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

Prosecution evidence

Mr Liu (PW1)

12.  Admitted in evidence is that Mr Liu was the owner and occupier of Room D on the 1st Floor of Kim Tin Building, Nos. 162-170 Reclamation Street in Yau Ma Tei (“the flat”); the flat is a corner unit located at the junction of Reclamation Street and Wing Sing Lane; that since June 2019 scaffolding had been erected outside the building for building refurbishment; and that the scaffolding was illuminated by white spot lights installed on the scaffolding[11].   

13.  Also admitted in evidence is that at about 00:30 a.m. on 19 February 2020, while Mr Liu was in his bedroom and about to go to sleep with all the lights off, he heard the sound of someone walking on the scaffolding outside the windows of his flat; when he looked out he saw a male standing on the scaffolding outside his bedroom window and that the male then walked on the scaffolding from Reclamation Street to Wing Sing Lane[12].

14.  Mr Liu testified that he drew the curtains slightly so he could see outside.  The lighting installed on the scaffolding was very bright.    Mr Liu described the male as wearing a blue outer garment; a brown scarf printed with letters on; shouldering a waist bag; wearing the outfit of a scaffolding worker; a pair of white and black stripe trousers and a blue facemask.  Mr Liu identified the brown scarf (exhibit P2)[13]; the outfit of a scaffolding worker (exhibit P3) and the waist bag (exhibit P8)[14].

15.  In cross-examination when asked what he saw the male doing, Mr Liu replied standing pressing the buttons of a mobile phone and added because of the light he could see the face of the man clearly.  

16.  After Mr Liu had observed the male for about two minutes, Mr Liu saw the male walk along the scaffolding to the side of Wing Sing Lane.  Mr Liu walked to the living room which faced Wing Sing Lane and continued to watch the male who had walked to the window near to the door of the balcony.   

17.  Mr Liu described some of the windows as lattice windows and one window which was not a lattice window from which he could clearly see the male walking on the scaffolding.  Mr Liu identified photograph 4, exhibit P24 as the window of his bedroom and photographs 5 and 6 showing the windows of his living room.  Mr Liu explained that the balcony is not shown on the photographs.

18.  In cross-examination Mr Liu said that the blue markings on the windows seen in photograph 6 was the lattice; he could not see clearly out of the lattice windows; the window near the balcony also had some lattice on; there was another set of windows not shown in the photographs which faced Wing Sing Lane from which he clearly saw the male with the same clothing walk to the window near the balcony and saw the silhouette of the male stop at that window.  Mr Liu later explained that by silhouette he meant the shadow of that person.

19.  During this time Mr Liu heard the male knocking on the window quite loudly, making a bang sound with something like a metallic object.  The male also used a torch or mobile phone to shine a light into his flat through the window near to the balcony.  Mr Liu said this continued intermittently for about seven minutes.

20.  In cross-examination Mr Liu agreed that he could not see clearly the moment the male was shining the light through the window and what he was using to shine the light and could not see clearly the moment the male knocked on the window and what he was using to knock on the window. 

21.  Mr Liu telephoned the police at around 00:48 a.m.  At this time the male was still outside Mr Liu’s flat walking to and fro along the scaffolding.  Later a police officer called saying they had a caught a person.  About one to two minutes before receiving the phone call from the police Mr Liu had seen the silhouette of the male disappear. 

22.  About two to three minutes later at around 01:08 a.m. the police called again and asked Mr Liu to go downstairs.  Mr Liu saw the police had arrested a male.  Mr Liu saw the face of the male and recognised the male by his brown scarf and blue outer garment.  Admitted in evidence is that during the police enquiry Mr Liu identified the defendant as the man he saw outside his flat on the scaffolding[15].

23.  In cross-examination Mr Liu disagreed that nobody shined a light into his flat or knocked on the window and disagreed that if someone did that it was not the person arrested by the police. 

24.  In re-examination Mr Liu said he only saw one male on the scaffolding. 

Arrest

25.  Admitted in evidence is that at about 00:55 a.m. PC 13819, PC 26407 and PC 23485 arrived at Kim Tin Building and saw a male on the scaffolding and asked him to come down from the scaffolding for enquiry[16]. All three police officers gave evidence with PC 23485 being tendered for cross-examination.

PC 13819 (PW2) – arresting officer

26.  In summary PC 13819 testified that he first saw the male on the scaffolding somewhere at the corner of Wing Sing Lane and Reclamation Street.  In cross-examination PC 13819 disagreed that the defendant was fixing the blue and white canvas sheets.  In answer to the court PC 13819 said he first saw the male on Wing Sing Lane and that the male was on the 1st floor[17]. 

27.  When the male came down PC 13819, together with PC 27333 and PC 26407, went up to make enquiry.  The male was wearing a blue outer garment, black pants, white cloth shoes and a safety belt.  A saw was hanging on the safety belt and three nylon waist bags. 

28.  PC 13819 identified the male as the defendant and said that no other civilian came down from the scaffolding.  

29.  Admitted in evidence is that at about 01:10 a.m. PC 13819 arrested and cautioned the defendant for attempted burglary[18]. Under caution the defendant said, “I was practising how to erect scaffolding up there”.  PC 13819 testified that he did not assault, threaten or offer any inducements prior to the defendant answering the caution. 

30.  In cross-examination PC 13819 disagreed that the defendant did not say this.  PC 13819 agreed that before arrest and caution he did ask the defendant what he was doing on the scaffolding but said the defendant made no reply.  PC 13819 disagreed that the defendant said that he just passed by and saw the net was loose so he went up to fix it.  PC 13819 disagreed the defendant showed him his scaffolding card. 

31.  The defendant was then handcuffed and escorted to the Yau Ma Tei police station. 

PC 26407 (PW3) – exhibit officer

32.  In summary PC 26407 testified that after he arrived at the scene he saw a male in a blue outer garment come down from the scaffolding on the 1st floor of the building. Together with PC 13819 he went up to stop the male for enquiry.  PC 26407 identified the male as the defendant. 

33.  After the defendant was arrested PC 26407 seized the defendant’s safety equipment (exhibit P3)[19]and a black nylon belt (exhibit P6) which the defendant had been wearing together with a knife (saw) with an orange handle (exhibit P7) which was on the black nylon belt[20]. The blade of the saw was covered by a black sheath.  PC 26407 did not seize any other items from the defendant at that time.

34.  The defendant was then escorted to a police vehicle and taken to the Yau Ma Tei police station.  On the way to the police vehicle the defendant pointed out a black backpack and a red messenger bag which were then seized. 

35.  Inside the police station PC 26407 searched the defendant in Room G15 and seized the following exhibits: a green facemask (exhibit P1); a brown scarf which was on the neck of the defendant (exhibit P2); the blue outer garment worn by the defendant (exhibit P4) and a pair of gloves (exhibit P5).  PC 26407 could not remember where he seized the green facemask from or the gloves or whether the defendant was wearing the gloves.

36.  PC 26407 also seized three waist bags (exhibits P8, P9 and P10) which were on the black nylon belt (exhibit P6).  PC 26407 found a Samsung mobile phone (exhibits P12, P13 and P14) inside the brown leather bag (exhibit P8) and a screwdriver (exhibit P15), a folding knife (exhibit P16) [21] and a pair of pliers (exhibit P17) inside the brown nylon bag (exhibit P9).  The camouflage bag (exhibit P10) was empty.  In cross-examination PC 26407 disagreed that the Samsung mobile phone, the screwdriver, the folding knife and the pair of pliers were found in the red messenger bag. 

37.  Asked if he found anything else PC 26407 replied that with the black belt there was a bunch of grey plastic straps used to tie scaffolding (exhibit P11).  In cross-examination PC 26407 disagreed that the bunch of grey plastic straps were not found on the defendant and disagreed that he or his colleague picked them up at the scene and brought them to the police station.

38.  PC 26407 testified that none of the exhibits were found in either the defendant’s black backpack or his red messenger bag and that after checking the two bags no contraband was found.  The two bags were therefore treated as the defendant’s personal belongings.   

PC 23485 (PW4) – tendered for cross-examination

39.  In summary PC 23485 was asked about how he was able to see the male on the scaffolding; how the male was asked to come down from the scaffolding; where the male was when he saw him on the scaffolding and what the male was doing on the scaffolding.      

40.  In summary PC 23485 replied that he was among the first group of police officers to arrive; torches were used to shine on the scaffolding; the male was somewhere near the 1st floor; he could not see what the male was doing or whether the male was holding anything in his hands; as far as he could remember the male did not have a light shining in front of him; the male was told to come down after which he walked slowly on the scaffolding and came down.

Authorisation

41.  Admitted in evidence is that City Construction Group Ltd was responsible for the scaffolding work at 162-170 Reclamation Street; the defendant was not one of the scaffolding workers hired by City Construction Group Ltd to do the scaffolding work and was not authorised to conduct any scaffolding work or any work at 162-170 Reclamation Street[22].

Video recorded interview (exhibit P21)

42.  Admitted in evidence is a video recorded interview conducted on 19 February 2020[23].  The defendant answered the caution and some of the questions.  The defendant had nothing to say in answer to many questions. 

43.  In summary the defendant told the police he did not do it; he did not burgle; he did not knock (see counters 15-20; 88-89; 129-130 and 139-140).

44.  The defendant had nothing to say when asked why he was on the scaffolding; what he was doing on the scaffolding; how he climbed on the scaffolding; what he used to illuminate the inside of a flat and what was his occupation (see counters 21-30); when asked about the neck gaiter (scarf) (see counters 51-52); and when asked why he went to 162-170 Reclamation Street (see counters 80-86).

45.  The defendant identified clothing, gloves, facemask and a safety belt he was wearing when he was arrested but had nothing to say when asked why he was wearing the safety belt (see counters 31-50; 53-58 and 118-127).

46.  The defendant said the screwdriver, the pliers, the knife and the saw were carried by him when building scaffold but had nothing to say when asked why he had the saw with him when he was arrested (see counters 59-66); he bought the tools for building scaffold; explained how he used the tools and that he had been building scaffold for six to seven years (see counters 90-117) and that he had a licence for scaffolding which was in his wallet (see counters 131-138 and 144-150).

47.  The defendant said he was a scaffold worker paid on a daily basis; he worked on 18 February but had nothing to say when asked who he worked for and where he worked (see counters 67-78) and said he had never worked in any scaffolding project at 162 Reclamation Street.

48.  In reaching my verdict I have considered the content of the video recorded interview in accordance with the decision in R v Sharp[24].   No adverse inference is drawn against the defendant where he exercised his right to silence by answering that he had nothing to say.

Defence evidence

49.  In summary the defendant testified that he had been a scaffolding worker for seven to eight years; that he passed an examination in 2016 and that he had a card which he kept in his wallet to prove he was qualified to be a scaffolding worker and sign a safety form.  The card was in his wallet on the day he was arrested.

18 February 2020

50.  The defendant said that on 18 February 2020 he had a job on Hennessy Road in Wan Chai doing scaffolding work on a building that was going to be demolished.  The defendant knocked off work at 7 p.m.   When knocking off work the defendant left the big tools in the tool boxes at Hennessy Road and took home the small tools together with his personal safety equipment.

51.  The defendant took the MTR to Yau Ma Tei and went to a video game centre at the junction of Kansu Street and Woosung Street where he waited for two of his friends to knock off from work.  Only one friend came.  Between 9:30 p.m. and 10 p.m. the defendant and his friend went to Temple Street for dinner.

19 February 2020

52.  After finishing dinner at around 00:15 a.m. the defendant’s friend, who lived in Yau Ma Tei, left first.  The defendant intended to walk to the Yau Ma Tei MTR station near Man Ming Lane to take the MTR home.  The defendant was carrying with him a red messenger bag inside which were his small tools for scaffolding work.  The defendant was also carrying a black backpack inside which were his clothes, shoes and safety equipment for work.

53.  In cross-examination the defendant said when he was working he would use the three small bags (exhibits P8, P9 & P10), which were attached to the black belt (exhibit P6), for carrying the small tools and his mobile phone and that after knocking off from work he would put the small tools and his mobile phone in his red messenger bag.

54.  When the defendant walked past the junction of Reclamation Street and Wing Sing Lane he saw scaffolding surrounding a building.  In cross-examination the defendant disagreed that to go from Temple Street to the MTR station he would not have to pass by Reclamation Street.

55.  The defendant noticed that the canvas and the net on the sloping part of the scaffolding was loosened by the wind[25]. Photograph 1, exhibit P25, shows the sloping part of the scaffolding.  The canvas is the blue and white sheets referred to by Ms Ko as the blue and white drapes when cross-examining the police officers.

56.  The defendant found this very dangerous, explaining that when he learnt how to erect a scaffold his tutor told him that he should lay the canvas and the net properly to avoid any objects falling to the ground.  The defendant therefore decided to go up the scaffold and lay the canvas and the net properly so that it would be safer for him and other passers-by.  The defendant estimated this would take him about five to ten minutes.

57.  In cross-examination the defendant said that he had never before gone up to fix scaffolding that he had noticed had some problem.

58.  The defendant took out his safety belt, safety straps, gloves and the saw with a sheath and put them on his body.  The saw was attached to a black belt together with three bags.  The defendant then put his red messenger bag, inside which he had put the small tools and his mobile phone, inside the black backpack and put the backpack underneath a bamboo ladder.

59.  In cross-examination the defendant said that he took the saw up with him because there was a possibility he would have to cut away the protruding part of the bamboo so the canvas could be laid flat.

60.  The defendant climbed up the ladder and walked along the scaffolding in the direction of Wing Sing Lane where he attached the safety straps; climbed onto the sloping part of the scaffolding and started to lay the canvas and the net.

61.  When he was on the scaffolding the defendant said he was wearing a blue jacket; black trousers, a facemask and a brown scarf round his neck.  The defendant said he was wearing the same trousers in court.  The trousers are exercise/sports style trousers with two gold stripes down each side and an elastic waistband[26].  In cross-examination the defendant agreed that exhibit P2 was the scarf he was wearing.  In re-examination the defendant said that he was wearing the scarf because the weather was cold and the mask because of the pandemic.

62.  The defendant said he had spent about ten minutes laying the canvas and the net when he noticed two police vehicles, with their sirens on, park in Wing Sing Lane.  Six or seven police officers alighted each holding a torch which they used to shine on different parts of the scaffolding.

63.  One police officer used his torch to shine on the defendant at which time the defendant said he was still on the sloping part of the scaffolding laying the canvas properly.  The police officer asked the defendant to go down to the ground.  The defendant therefore untied the safety belt and walked along the scaffold to Reclamation Street.

64.  When the defendant reached the street a police officer escorted him to Wing Sing Lane where he took out the defendant’s wallet and asked him to produce his identity card.  The police officer searched the defendant’s body.  Nothing was found on the defendant’s body except the safety equipment, the gloves and the saw which he was wearing.

65.  When the police officer asked what he was doing the defendant said that he just wanted to lay the canvas and the net properly up there and that if he did not believe him there was proof from the CCTV of the shops on the ground floor to show he did not do anything. The defendant did not say to the police he was practising erecting scaffold.

66.  The defendant said he also showed the police officer his scaffolding card.  The defendant produced his scaffolding card (exhibit D1); his training certificate (exhibit D2) and his workers registration card (exhibit D3) [27].

67.  The police officer ignored the defendant and said that he suspected him of committing burglary and he had to arrest him.  The defendant was then handcuffed and escorted to a police vehicle.  When the defendant was about to get on the police vehicle he told the police officer about his black backpack underneath the bamboo ladder.  The police officer instructed a colleague to go pick up the black backpack.

68.  The defendant was taken to the Yau Ma Tei police station where everything from his black backpack and the red messenger bag were poured onto a table together with the safety equipment, gloves and the saw with a sheath.

69.  A knife, a cutter (pliers) for cutting wire and a screwdriver were taken out of the biggest compartment of the red messenger bag.  The defendant said there was also another knife in the same compartment which the police did not take out and was in his prisoner’s property.

70.  The defendant said his mobile phone was taken out from the small compartment of his red messenger bag together with a red phone, a packet of cigarettes and some coins. 

71.  In cross-examination the defendant disagreed that the red phone, which was in his prisoner’s property, was broken.  The defendant agreed that the mobile phone seized by the police had a torch function.

72.  The defendant said he never knocked on any window; did not shine a light in any window; never tried to enter any flat and did not intend to steal from any flat.

Discussion

73.  I have carefully considered all the evidence and the submissions of Mr Kelly and Ms Ko.

74.  I have no hesitation in rejecting the defendant’s evidence.  I do not find the defendant’s evidence credible, for example I do not find credible that shortly after midnight the defendant, who was not authorised to work on the scaffolding, just happened to pass by the building and climbed up the scaffolding to fix loose canvas and netting[28].

75.  I do not find credible that the defendant took the saw with him in case he needed to cut away the protruding part of the bamboo so the canvas could be laid flat, bamboo of scaffolding he was not authorised to work on. 

76.  I do not find credible that after knocking off work the defendant would take the small tools out of the three small bags (exhibits P8, P9 & P10) and put them together with his mobile phone in the red messenger bag.  Neither do I find credible the defendant would leave these items, in particular his mobile phone, on the ground while he climbed up the scaffolding.  

77.  I am satisfied the defendant’s evidence that he climbed up the scaffolding to fix loose canvas and netting was entirely contrived in an attempt to give an innocent explanation for why, just after midnight, he went up scaffolding on which he was not authorised to work.   I reject the defendant’s evidence that he went up the scaffolding to fix loose canvas and netting. 

78.  In rejecting the defendant’s evidence, I have carefully considered that the defendant is a qualified scaffolding worker as shown by his scaffolding card (exhibit D1); his training certificate (exhibit D2) and his workers registration card (exhibit D3)and that when he was arrested he was wearing his safety equipment used in scaffolding work.  This does not cause me to doubt the findings I have made.

79.  I am satisfied no weight is to be attached to the defendant’s denials in the video recorded interview that he did not do it; he did not burgle and he did not knock. 

80.  I remind myself that the rejection of the defence evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Answer under caution

81.  As noted earlier the defendant is alleged to have said under caution “I was practising how to erect scaffolding up there”.  The defendant denies he said this and testified that he told the police that he just wanted to lay the canvas and the net properly up there[29].

82.  Ms Ko submits that given the defendant’s background in scaffolding it does not make any sense for the defendant to say he was practising how to erect scaffolding. Ms Ko also points out that in the video recorded interview the defendant did not repeat that he was practising how to erect scaffolding[30].

83.  Although no evidence has been adduced that PC 13819 post-recorded the arrest and the defendant’s reply under caution and showed the post-record to the defendant, the details of the arrest and the alleged reply under caution were recited twice in the video recorded interview (counters 15 and 129).

84.  As Ms Ko points out the defendant did not repeat that he said he was there practising how to erect scaffolding.  The defendant said “I did not do it.  I did not attempt to burgle” (counter 20) and “I have nothing to say.  I did not attempt to burgle” (counter 130).  No adverse inference is drawn against the defendant for exercising his right to silence.

85.  For the reasons already given I reject the defendant’s evidence that he went up the scaffolding to fix loose canvas and netting.  I reject the defendant told the police that he just wanted to lay the canvas and the net properly up there.

86.  After careful consideration of all the evidence, I find I am satisfied so I am sure that the defendant said under caution “I was practising how to erect scaffolding up there”.  The fact that the defendant is a qualified scaffolding worker does not cause me to doubt this finding.  I am however satisfied that no weight is to be attached to the assertion that the defendant was practising scaffolding.

Exhibits

Samsung mobile phone (exhibits P12, P13 and P14); screwdriver (exhibit P15), folding knife (exhibit P16)and a pair of pliers (exhibit P17)

87.  As noted already PC 26407 testified that after the defendant was arrested he seized the defendant’s safety equipment (exhibit P3), a black nylon belt (exhibit P6) which the defendant had been wearing together with a knife (saw) (exhibit P7) which was on the black nylon belt and in the police station he seized three waist bags (exhibits P8, P9 and P10) which were also on the black nylon belt.  PC 26407 found the Samsung mobile phone inside the brown leather bag (exhibit P8) and the screwdriver, the folding knife and the pair of pliers inside the brown nylon bag (exhibit P9).  The camouflage bag (exhibit P10) was empty[31].

88.  The defendant agrees that when he came down from the scaffolding he was wearing the safety equipment (exhibit P3) and the black nylon belt (exhibit P6) on which was the saw (exhibit P7) and the three waist bags (exhibits P8, P9 and P10) but says that the three bags were empty and that his mobile phone, the screwdriver, the folding knife and the pair of pliers were in his red messenger bag which he had left on the ground inside his black backpack[32].

A bunch of grey plastic straps (exhibit P11)

89.  PC 26407 testified that he found with the black belt a bunch of grey plastic straps used to tie scaffolding (exhibit P11).  In cross-examination PC 26407 disagreed that the bunch of grey plastic straps were not found on the defendant and disagreed that he or his colleague picked them up at the scene and brought them to the police station[33].   

90.  In cross-examination the defendant, inter alia, disagreed that the bunch of grey plastic straps belonged to him; disagreed he was found in possession of them when arrested; said that grey straps were hanging everywhere around the scaffolding and that he saw the bunch of grey plastic straps after he arrived at the police station when he was inside a room but did not pay attention to who brought them into the room[34].

91.  Ms Ko submits that PC 26407 must have searched the three waist bags at the scene; if he did not then there was no evidence what was inside the three waist bags; PC 26407’s evidence about the bunch of grey plastic straps was unclear; the bunch of grey plastic straps were never attached to the defendant; PC 26407’s evidence was not accurate and that the mobile phone, the screwdriver, the folding knife and the pair of pliers were not found in the three waist bags[35]. 

92.  I have no hesitation in rejecting this submission.  I accept the explanation of PC 26407 given in cross-examination that at the scene of arrest he only conducted a quick search and seized the saw (exhibit P7) straight away because it was a dangerous item. 

93.  Although PC 26407 said he considered the screwdriver, the folding knife and the pair of pliers dangerous items and would have seized them if he had found them at the scene of arrest, this evidence does not cause me to doubt that they were found in the three waist bags.  Albeit the saw had a sheath covering the blade, the saw was hanging on the black nylon belt (exhibit P6) and clearly posed a danger whereas what was inside the three waist bags which were removed together with the black nylon belt did not pose an immediate danger.

94.  The fact that PC 26407 only searched the three waist bags in the police station does not cause me to doubt that he found the mobile phone, the screwdriver, the folding knife and the pair of pliers inside the waist bags. 

95.  Ms Ko also refers to the evidence of PC 13819 given in cross-examination that items were put on the table of room G15 including items from the defendant’s backpack and that he was unable to distinguish which items were found and where they were found[36]. The evidence of PC 13819, who was not responsible for seizing any exhibits, does not cause me to doubt PC 26407’s evidence that he found the mobile phone, the screwdriver, the folding knife and the pair of pliers inside the waist bags.

96.  In cross-examination PC 26407 said, inter alia, that the bunch of grey plastic straps (exhibit P11) were found on the defendant’s waist; he could not remember how they were attached to his waist; they were seized at the police station; at the time of seizure they were not attached to the defendant; they were separated from the defendant in room G15 and that they were attached to the defendant’s waist from the time of his arrest until he reached the room G15. 

97.  After the court clarified with PC 26407 that the black belt he said he found the bunch of grey plastic straps with, was the black nylon belt (exhibit P6) Ms Ko asked PC 26407 whether he was holding the black nylon belt when he entered room G15 and whether the bunch of grey plastic straps were attached to the belt when he entered room G15.  PC 26407 replied that he was carrying the black nylon belt when he entered room G15 but was not sure if the bunch of grey plastic straps were attached to the belt[37].

98.  Having viewed both the bunch of grey plastic straps and the defendant’s trousers in court, I find that the bunch of grey plastic straps could not have been attached to the waist band of the defendant’s trousers.  The fact that PC 26407 could not clearly explain how the bunch of grey plastic straps were attached to the defendant’s waist does not cause me to doubt his evidence-in-chief that the bunch of grey plastic straps were found with the black nylon belt.

99.  Having carefully considered all the evidence, I find I am satisfied so I am sure that PC 26407 found the mobile phone, the screwdriver, the folding knife and the pair of pliers inside the waist bags; none of the exhibits were found in either the defendant’s black backpack or his red messenger bag; that after checking the two bags no contraband was found; the two bags were treated as the defendant’s personal belongings and that the bunch of grey plastic straps were found with the black nylon belt which was seized at the scene of arrest.

Knocking and shining

100.  Admitted in evidence is that Mr Liu saw a male outside his bedroom window and that the male walked on the scaffolding from Reclamation Street to Wing Sing Lane[38].  Mr Liu testified that the same male knocked on his window and used a torch or mobile phone to shine a light into his flat through the window near to the balcony[39].  The defendant testified he was on the scaffolding but did not knock on the window or shine a light through the window of Mr Liu’s flat.

101.  Ms Ko submits that there was no knocking or light shining on Mr Liu’s flat; that even if there was it was not caused by the defendant and that there is simply no evidence of the defendant causing the knocking or light shining[40].

102.  When Ms Ko put that the male was fixing the blue and white canvas sheets Mr Liu replied “Perhaps I put it in this way.  He was at that location knocking on my window”. 

103.  The fact that in cross-examination Mr Liu agreed he could not see clearly the moment the male was shining the light through the window and what he was using to shine the light and could not see clearly the moment the male knocked on the window and what he was using to knock on the window does not cause me to doubt his evidence that he saw a male on the scaffolding who knocked on his window and shined a light through his window. 

104.  I accept the evidence of Mr Liu that the male did shine a light through his window and knocked on his window. 

105.  In reaching this finding I have considered the admitted evidence that a subsequent inspection of the window frames of Mr Liu’s flat revealed no damage[41].  The fact that there was no damage to the window frames does not cause me to doubt Mr Liu’s evidence that he saw the male shine a light through his window and knock on his window.

106.  I have also considered the submission of Ms Ko that the evidence of Mr Liu that after he called the police there were still banging sounds and light shining is not supported by the evidence of the police officers who did not hear any knocking sound or any light shining or see the defendant holding anything[42].  I have no hesitation in rejecting this submission. 

107.  In cross-examination Mr Liu said that after he called the police he heard the knocking sound once after which the male walked to and fro between the windows facing Reclamation Street and Wing Sing Lane and that the male was still shining the light but he could not quite remember for how long the male shined the light. 

108.  Once the police arrived they were shining lights on the defendant and telling him to come down.  It is therefore not surprising that they did not hear any knocking sound or see the defendant shining any light. In cross-examination PC 13819 disagreed that the defendant was fixing the canvas. The fact that no police officer heard the knocking sound or saw a light shining does not cause me to doubt Mr Liu’s evidence that he saw the male shine a light through his window and knock on his window.

109.  I find as a fact that the male did shine a light through the window of Mr Liu’s flat and knocked on his window.  I therefore turn to consider whether the male was the defendant.

Identification

110.  Ms Ko submits that the evidence of Mr Liu that the same male he first saw outside his bedroom window was the same male who knocked on his window and shined a light through his window is unreliable, in particular Mr Liu only felt that the silhouette/shadow of the person was the same[43].

111.  The prosecution case depending on the correctness of the identification of the defendant by Mr Liu, I direct myself in accordance with the principles established in R v Turnbull[44]. I warn myself of the special need for caution before convicting the defendant in reliance on the evidence of identification. 

112.  I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness and that mistakes in recognition of close relatives and friends are sometimes made[45]. I remind myself even where presence is agreed a full Turnbull direction should be given where a mistaken identification is clearly possible[46]. 

113.  In cross-examination when asked how he could be sure the male arrested by the police was the same male who shined a light in his flat and who knocked on the window Mr Liu repeated that when the male was moving from Reclamation Street to Wing Sing Lane he could clearly see his clothing and that the silhouette of the male was the same.

114.  The fact that in cross-examination Mr Liu agreed he could not see clearly the moment the male was shining the light through the window and the moment the male knocked on the window and that at times he could only see the silhouette/shadow of the male does not cause me to doubt his evidence that he only saw one male on the scaffolding who knocked on his window and shined a light through his window. 

115.  I accept the evidence of Mr Liu that the lighting on the scaffolding was very bright; his description of the clothing of the male, specifically the brown scarf (exhibit P2); he saw the male pressing the buttons of his mobile phone; he could see the face of the man clearly and he only saw one male on the scaffolding[47]. I accept the evidence of Mr Liu that he clearly saw the male with the same clothing walk to the window near the balcony and saw the silhouette of that male stop by the window. 

Supporting evidence

116.  I accept the evidence of the three police officers that they each saw the defendant on the 1st floor and that PC 13819 saw no other civilian come down from the scaffolding[48].

117.  Having carefully considered all the evidence and the circumstances of the identification I find I am satisfied so I am sure that the prosecution have proved beyond reasonable doubt that the male Mr Liu saw outside his 1st floor bedroom window and who walked along the scaffold to Wing Sing Lane where the male shined a light in the living room and knocked on the window was the same male. I am satisfied so I am sure that the prosecution has proved that male was the defendant.   

118.  In reaching this finding I have carefully considered the submissions of Ms Ko.  Nothing said by Ms Ko causes me to doubt that the male Mr Liu saw outside his bedroom window and who walked along the scaffold where he was seen to shine a light in the living room and knock on the window was the defendant.

Attempt

119.  Ms Ko submits that the circumstances suggesting that the defendant was burgling do not make sense and are so plain and attention grabbing that a reasonable inference is that the defendant was not attempting to burgle[49]. 

120.  I have no hesitation in rejecting this submission.  I am satisfied so I am sure that the actions of the defendant were more than merely preparatory and amount to an attempted burglary of Mr Liu’s flat. 

121.  I am satisfied so I am sure that by these actions the only inference to draw is that the defendant, who was not authorised to work on the scaffolding, intended to steal.  I agree with the prosecution opening that the defendant used the disguise of a bona fide scaffold worker to cover up his dishonest actions[50].

122.  In reaching my verdict I have carefully considered everything said on behalf of the defendant by Ms Ko, both individually and collectively, including that the defendant never made any attempt to flee[51]. Nothing said by Ms Ko causes me to doubt the findings I have made.

123.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted of attempted burglary.